THE STANDING SENATE COMMITTEE ON OFFICIAL LANGUAGES
EVIDENCE
OTTAWA, Monday, June 20, 2022
The Standing Senate Committee on Official Languages met with video conference this day at 5 p.m. [ET] to study the subject matter of 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 Acts.
Senator René Cormier (Chair) in the chair.
[Translation]
The Chair: Honourable senators, before we begin, I’d like to remind senators and witnesses to please keep your microphones muted at all times, unless the chair gives you the floor.
If you experience technical difficulties, particularly in relation to interpretation, please signal this to the chair or the clerk, and we’ll work to resolve the issue.
Participants should know to take part in the meeting in a private area and to be mindful of their surroundings. We will now begin with our meeting.
I’m René Cormier, a senator from New Brunswick and the Chair of the Senate Committee on Official Languages.
I’d like to introduce the members of the committee who are participating in this meeting: Senator Rose-May Poirier from New Brunswick, deputy chair of the committee; Senator Raymonde Gagné from Manitoba, member of the steering committee; Senator Jean-Guy Dagenais from Quebec, member of the steering committee; Senator Bernadette Clement from Ontario; Senator Lucie Moncion from Ontario; Senator Clément Gignac from Quebec; and Senator Marie-Françoise Mégie from Quebec.
[English]
I wish to welcome all of you and viewers across the country who may be watching. I would like to point out that we are taking part in this meeting from within the unceded traditional territory of the Algonquin Anishinaabe Nation.
Today, we continue our study of the subject matter of 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 Acts. This is a pre‑study of the bill, being done before it is sent to the Senate by the House of Commons.
[Translation]
For the first part of our meeting, we’re pleased to welcome once again the Commissioner of Official Languages, Raymond Théberge. He’s accompanied by Ms. Isabelle Gervais, Assistant Commissioner, Compliance Assurance Branch; Ms. Pascale Giguère, General Counsel; and Mr. Pierre Leduc from the Policy and Communications Branch.
Commissioner, members of the Office of the Commissioner, welcome to the committee and thank you for being with us.
As you know, we’re conducting a pre-study of Bill C-13. We had agreed to begin with Part 2 of the bill, related to the use of French in federally regulated private businesses, but the senators are free to ask the questions of their choosing.
Mr. Théberge, we are ready to hear from you. The floor is yours.
Raymond Théberge, Commissioner of Official Languages, Office of the Commissioner of Official Languages: Thank you, Mr. Chair. Honourable senators, good afternoon.
Although today’s meeting is taking place virtually, I’d like to acknowledge that I’m speaking to you today from Treaty 1 territory, the traditional territory of the Anishinaabeg, Cree, Oji‑Cree, Dakota and Dene peoples, and the homeland of the Métis nation.
I am very pleased to be with you today to present the results of my in-depth analysis of the government’s proposed measures in Bill C-13.
This bill clearly represents a major step toward modernized legislation. If passed, it has the potential to transform Canada’s language policy by making the foundation on which it rests, the Official Languages Act, a law that will enable our official languages to advance and that will truly defend the language rights of Canadians.
[English]
I’m very pleased to see that Bill C-13 requires the Minister of Citizenship and Immigration to adopt a policy on francophone immigration, including objectives, targets and indicators, to enhance the vitality of French linguistic minority communities in Canada. However, it is important to remember that this policy should cover the entire immigration continuum, including all immigration stages and categories. That is why I am recommending that the minister be required to specify how he intends to achieve the objectives and targets. Without accountability, the immigration policy may not deliver the desired results.
[Translation]
As I explain in my brief entitled Seizing a Historic Opportunity: For a Complete Modernization of the OLA, Bill C-13 is very promising, but there are some measures that could be improved and clarified.
There are also some long-awaited measures not included in the bill that should be added, in my opinion.
For example, Bill C-13 does not include any measures to modernize the core components of the act that govern communications with and services to the public, and language of work. As I point out in my brief, this omission is one of the stumbling blocks in the bill.
The act needs to specify and clarify the way in which federal institutions are required to make an active offer. More than 80% of francophones say that when an active offer is made, there is a good chance they will opt for service in French. However, if an active offer is not made, only 14% say they will request service in the official language of their choice.
This statistic clearly shows how important the active offer is in ensuring access to government services in Canadians’ preferred official language.
[English]
Bill C-13 also needs to make the entire act technologically neutral. The technologies that federal institutions use to communicate with their employees and with the public have evolved dramatically over the past few decades. Who could have imagined, when the current version of the act was passed in 1988, that it would one day be possible to get information about an emergency by receiving an alert message on a cell phone or that a global pandemic would force most Canadians to work from home and learn how to use new technological tools?
That is why Bill C-13 must include provisions that are not limited to earlier or present-day technologies. We need to plan for the unexpected and ensure that the act stands the test of time.
[Translation]
I also think that Bill C-13 should enshrine in the act a duty for federal institutions to draft all federal-provincial-territorial agreements in both official languages and to include enforceable language clauses in those agreements.
Another aspect of the bill that could benefit from some fine tuning are the measures to improve governance, meaning the way the federal government ensures that the act is implemented effectively.
I strongly believe that the act would be greatly improved if responsibility for its governance were assigned to a central agency that had the authority and legitimacy to strengthen accountability mechanisms and to ensure federal institutions’ compliance.
In my opinion, the Treasury Board of Canada is in the best position to assume this important responsibility. There is considerable overlap in Bill C-13 between the Treasury Board’s responsibilities and those of Canadian Heritage. This results in two separate entities being responsible for the implementation of the act, which is problematic when trying to determine who has the final say.
[English]
Although Bill C-13 reinforces the Treasury Board’s obligations, its responsibilities must be strengthened so that it cannot delegate its powers and duties to deputy heads of other federal institutions.
Finally, the provisions of the bill regarding support for the development and vitality of official language minority communities are a step in the right direction. However, I am concerned that these provisions risk undermining the Federal Court of Appeal’s interpretation of federal institutions’ duties, as set out in its recent decision in the Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development) case.
In fact, Bill C-13 gives federal institutions too much latitude compared to the duties prescribed in the FFCB decision with respect to the obligation to take positive measures and the obligation to mitigate any negative impact of their decisions based on impact analyses.
Bill C-13 needs to better circumscribe the latitude given to federal institutions. Therefore, I am calling on the government to enshrine in the act the principles set out in the Fédération des francophones de la Colombie-Britannique decision.
In my brief, I explain my position in more detail and make several other recommendations that I hope will help strengthen the act, which has already accomplished so much to advance official languages in Canada over the past 50 years.
[Translation]
Your committee’s study of Bill C-13 brings us one step closer to the finish line. However, there are still a number of stages to go before it is passed.
We can no longer afford any more delays. The ball is now in your court, and I urge you to seize the historic opportunity before you today to make this bill a success for Canada’s official languages.
Thank you for your attention. I will be happy to answer your questions in the official language of your choice.
The Chair: Thank you, Mr. Théberge. Before giving the floor to my colleagues, I’d like to thank you for this compelling brief. I think it will certainly give us the opportunity to invite you again once we are studying the bill, since there is a lot in this brief, which is inspiring and provides important food for thought for the members of the committee.
For this first hour, we will proceed as planned with questions. I would remind senators that they need to use the “raise hand” feature and that they have five minutes for questions and answers. I’d ask the commissioner and my colleagues to respect that five minutes of speaking time. That will allow us to have several rounds.
I’ll first give the floor to the deputy chair of the committee, Senator Rose-May Poirier.
Senator Poirier: Thank you for being with us again, Mr. Théberge. It’s always a pleasure to see you.
My first question is about Part 2 of 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 Acts.
The witnesses last week had concerns about the application of the regulations, because there is a lot of uncertainty in that respect. They said that they didn’t know what to expect. The Parliamentary Budget Officer also shared his concerns about the lack of information and clarity, which must be addressed through regulations after Bill C-13 is passed.
You also shared your concerns with us about the definitions set out in Part 2.
In your opinion, with legislation of this scope, would it be best for the government to remove Part 2 of Bill C-13 and bring forward a better-defined bill?
Mr. Théberge: Thank you, senator. I think, with this brief, that we’re contributing something — how we can improve what I call the UFA, the use of French act. Clearly, there is a lot of uncertainty about this bill, because it does not clearly define what constitutes a consumer or an employee, what the threshold is for the number of employees, what constitutes a strong francophone presence and so forth.
I also think the bill redefines somewhat the concept of official languages and the concept of Canadian duality that we’ve become used to working with for 50 years. That said, we clearly need to find a way to promote the use of French nationally. I think this bill warrants serious reflection, and not only should my recommendations be considered, but also recommendations from other stakeholders.
Senator Poirier: Do I still have a bit of time?
The Chair: Yes, absolutely. You have three minutes left.
Senator Poirier: The purpose of the Official Languages Act is to ensure respect for English and French as the official languages of Canada, while the purpose of the use of French act is to defend the French language by completely excluding English from its purpose and protection.
In your opinion, what risk is there in omitting English from this act?
Mr. Théberge: When I look at Bill C-13, it’s clear that my mandate in relation to the Official Languages Act is different from my mandate under the use of French act. As I said earlier, the use of French act represents an important change in the approach used in official language minority communities. As commissioner, I must defend the use of both official languages and both communities based on those two official languages. The current bill grants rights to one community, but not the other. It must be remembered that the purpose of the act is to foster and encourage the use, promotion and sustainability of the French language.
Senator Poirier: I have a bit of time left, so I’ll be quick.
In the bill as it currently stands, could an anglophone in Quebec file a complaint with your office if they believe that their language rights at work are not being respected? If so, how will you handle that type of complaint?
Mr. Théberge: The way the bill currently reads, I don’t think we have enough information to give you a clear response.
The Chair: Thank you for your answers, Mr. Théberge.
Senator Gagné: Welcome again, commissioner. It’s always a pleasure to see you.
I’d like to continue in the same vein as the question from Senator Poirier about the rights granted by the Use of French in Federally Regulated Private Businesses Act. In your brief, you indicated that, technically, Part 2 states that language rights must be given a large, liberal and purposive interpretation and are to be interpreted in light of their remedial character. However, the principle of interpretation in relation to substantive equality is missing in the use of French act.
Technically, if that principle of interpretation was added, it could strengthen Part 2. Have I understood correctly?
Mr. Théberge: I think that’s a good interpretation because, very often, the meaning of substantive equality isn’t fully understood. The Supreme Court has defined its application, how substantive equality is applied or realized. The principle of substantive equality already allows us to use different approaches in different contexts to achieve the substantive reality of official languages.
If the concept of official languages is codified in Part 2, the use of French act, I think there would be a better balance between the two official languages. It remains to be seen how that would then apply in implementing the use of French act, but it’s clear to me that it would ensure the equality of both official languages. However, it remains to be seen if that will be the direction taken.
Senator Gagné: Thank you. May I ask a second question?
The Chair: Certainly.
Senator Gagné: What definition should be given to the expression “regions with a strong francophone presence?” Should such a definition be included in the Official Languages Act instead of in regulations?
Mr. Théberge: That’s an excellent question. Purely statistical elements can be used, but much more qualitative elements can also be used. There can be small communities that are very strong and very robust, if the community’s institutional network is considered, for example. For now, it isn’t clear what that means. For instance, is it Caraquet? Is it Sudbury? Is it Saint-Boniface? I don’t know, but quantitative and qualitative elements must be considered.
There are communities that are very strong and very robust, but that don’t necessarily have a population of more than 100,000, for example. It’s important to keep in mind both types of factors. I think that the law should clarify, where possible... Regardless, we still don’t know when the act will come into force by order-in-council.
Then, the regulations will be developed. That work can take several years.
The Chair: Your connection is bad, commissioner, but I think we heard most of your response.
Mr. Théberge: Yes.
Senator Gagné: If I understand your comments, the current model for federal institutions under Part IV regulations could be reproduced for federally regulated private businesses?
Mr. Théberge: It would be similar to that, yes.
Senator Gagné: Okay, thank you.
Senator Dagenais: Good afternoon, Mr. Théberge. What do you think of Canadian Heritage’s mandate of applying the provisions that protect and promote the French language and reporting solely to the House of Commons? We have very little information on that process. As it’s defined, is it a positive element in the bill, or is it a duplication of the role of the Commissioner of Official Languages or the Office of the Commissioner of Official Languages, if we can call it that?
Mr. Théberge: For 50 years, Canadian Heritage has always played an important and leading role in the implementation of the Official Languages Act, under Part VII, for example. I believe that the law would benefit a lot from much more centralized coordination within the federal government. Canadian Heritage would still play an important role, given its ties to the communities. Canadian Heritage has always played a very important role in communities.
Official languages are not a program, even though they’re sometimes perceived that way. Official languages are at the heart of the Canadian identity. It’s a fundamental value that should be at the heart of the federal government. In my opinion, there would be a lot of benefit in much more centralized coordination, for example, at the Treasury Board Secretariat. Clearly, Canadian Heritage plays an important role. However, for better coordination and better government reporting, maybe a much more centralized coordination should be considered.
Senator Dagenais: As a senator from Quebec, I’d like to talk to you about this. Minister Sonia LeBel sent us observations and recommendations for Bill C-13, and we’ll undoubtedly come back to that. Although Bill C-13 hasn’t been passed yet by the House of Commons, do you believe that Quebec’s new language legislation, Bill 96, is clearer and better protects French than Bill C-13, as we understand it?
Mr. Théberge: It’s hard to make that comparison right now. Bill 96 has just been passed and has not been implemented yet, just as Bill C-13 hasn’t been passed or implemented. They also address different realities. Bill 96 caused some controversy. I get the impression that it will be challenged before the courts. I’ll certainly pay attention to what happens with that bill.
It’s up to the committee to consider Minister LeBel’s proposals. This issue is being played out through intergovernmental affairs. I think Bill C-13 is nonetheless a laudable effort to promote French in the coming years.
Senator Mégie: Good afternoon, commissioner. It’s a pleasure to see you again today.
In an article published in the January-February 2022 edition of the magazine L’actualité, Stéphanie Chouinard noted that, to be bold, we could:
. . . even propose the creation of a language rights tribunal where, like human rights tribunals, Canadians could seek redress and damages when their language rights were infringed upon.
Bill C-13 provides for administrative monetary penalties. In your opinion, are they as impactful as creating a language rights tribunal? If not, why?
Mr. Théberge: Maybe it shouldn’t be limited to targeting administrative and monetary penalties. The bill gives the commissioner a series of powers, tools, compliance mechanisms and the possibility of entering into binding agreements, issuing orders and, of course, imposing administrative monetary penalties. Those compliance mechanisms ensure that the role of the commissioner and the commissioner’s office will be increasingly subject to judicial control.
In a way, it may be similar to the concept of an administrative tribunal, but not completely. However, the tools provided in this bill will certainly allow me and my successors to ensure far better compliance with the law. I think what’s currently in Bill C-13 is important progress in terms of compliance tools and mechanisms.
Senator Mégie: Thank you.
Senator Moncion: Welcome, commissioner. It’s always a pleasure.
Could you comment on the fact that Bill C-13 mentions the Charter of the French Language, but does not refer, for example, to what exists in New Brunswick? I’d like to hear from you on the juxtaposition of those two laws, that element in the Official Languages Act and the distinction between the two systems.
Mr. Théberge: Thank you. I had the impression that the bill referred not only to the charter, but also to the specifics of various communities, such as section 23 of the Manitoba Act and, of course, the Constitution Amendment for New Brunswick. The bill is supposed to reflect the characteristics and specificities of our communities. I think that’s part of the preamble of Bill C-13. There’s recognition of the specific characteristics of communities. For Quebec, the charter defines that distinctiveness, while it’s the law in New Brunswick and section 23 in Manitoba.
I think the system proposed in Bill 96 takes into account a government orientation. As federal Commissioner of Official Languages, I look primarily at the particularities and points related to Bill C-13. I think that recognition of the specificities of the regions and communities has always been part of the law, and it’s now explicit because provincial and territorial jurisdictions are being respected.
Senator Moncion: Thank you for your response and the clarity. Could you comment a bit on the English language’s place in the Official Languages Act as it’s currently worded?
Mr. Théberge: As was said earlier, the Official Languages Act, apart from the UFA, treats English and French equally and treats the two communities in the same way, on the same footing.
However, in Part VII, there are some asymmetrical elements related to immigration, for example, but Bill C-13 is separate from Bill C-32 because the use of French act was removed from that bill and made a separate law.
As I noted earlier, the role and mandate of the Commissioner of Official Languages have always been to defend both official languages and both communities that speak those languages. What is being proposed now is a significant change to the language regime that has been in place for over 50 years. The role of English is one thing in the Official Languages Act, but is different in the UFA as it is currently worded.
Senator Clement: Welcome, commissioner. It’s good to see you again.
You referred to certain shortcomings, one being communication with the public. I’d like you to give more details on that shortcoming. The last time we saw you, I referred to the concept of “technologically neutral” because that expression fascinates me and I’m still trying to understand. I read your brief. Great job and thank you for your work. On page 10, you talk about this topic, but I’d like to have concrete examples of what you mean by “technologically neutral,” to know what must be done. You’re right, it’s a historical time and this issue of technology is important.
Mr. Théberge: I have an excellent example: Twitter. When Twitter started, there was immediately a series of complaints because members of Parliament and officials were sending out tweets in just one official language, because Twitter was seen as a personal account. Following investigations and the passing of regulations, tweets from members of Parliament and senators are now in both official languages.
With artificial intelligence, the future could bring models that deliver services that are even more virtual than they are now. An entire range of tools will be provided to employees who work virtually. Will those tools allow workers and public servants to work in both official languages? Those new technologies can’t be specified in the law because I’m certainly not able to predict what the new technology will be. I saw the advent of the fax machine and I will see it disappear, so it’s hard to predict what new technology will be. However, that must not become an excuse for not respecting one’s obligations under the Official Languages Act.
There’s some technology that doesn’t lend itself to this type of meeting. Simultaneous interpretation is not possible with Teams, but is with Zoom, so there’s technology that can be used. It’s that type of technology that exists or doesn’t exist that could have an impact on the use and implementation of the act.
Senator Clement: What language should be added to the bill?
Mr. Théberge: I think the language must be fairly broad because platforms can’t be identified. If they were, it’s clear that, within a certain number of years, platforms will have been forgotten and some will no longer be in use. It’s more about the concept and principle; it’s important that this be included in the bill.
Senator Clement: I believe you’ve worked with the Parliamentary Budget Officer to develop definitions of regions with a strong francophone presence. I believe I heard him mention it.
Do you have any comments on the Parliamentary Budget Officer’s report and the costs that he cited?
Mr. Théberge: Certainly. I think that the costs proposed by Mr. Giroux are based on the best information currently available to him and that it’s an interpretation of the use of French act.
It’s not necessarily costs associated with the Office of the Commissioner of Official Languages, but costs for and impacts on the businesses in question. I’m not an expert in determining the impact on users, but I think it’s nonetheless an important contribution. There are significant costs associated with this bill, and there will be an impact on operations at the Office of the Commissioner of Official Languages.
Senator Clement: Thank you.
The Chair: Commissioner, I’ve read your brief very carefully. One thing that stands out, in my opinion, are the challenges around consistency between these new language regimes. I wonder how, with your powers as Commissioner of Official Languages, you will manage the various challenges when it comes to the consistency between the Official Languages Act and the use of French act.
There’s another challenge related to consistency in terms of the senior public service and the ability of senior officials to speak both official languages. I’ll put the question to you at the same time. Is the same thing being required of private businesses? If not, should the same thing be required of them? In your responsibilities as Commissioner of Official Languages, how do you see yourself applying and managing these challenges related to consistency?
The last part of my question is this — and you mention it in your brief: How will you balance your responsibilities as commissioner while working with the Canada Industrial Relations Board and the Office québécois de la langue française? It seems to me that you’ll face new challenges, and I’m very curious to hear your comments on your responsibilities and the challenges that you expect in carrying out your duties.
Mr. Théberge: Thank you, Mr. Chair.
As I mentioned, whether I’m focusing on the Official Languages Act or the Use of French in Federally Regulated Private Businesses Act, I have essentially the same powers, except that, for the UFA, I don’t currently have the power to impose administrative monetary penalties. However, there’s also the Canada Industrial Relations Board. Obviously, a method and a means of working together will be established, and that may be better clarified in regulations. I think it’s hard right now to predict exactly how things will move forward when a complaint is received from an employee or group of employees because clarification is still needed as to who is an employee and who is subject to this legislation.
As I mentioned earlier, what we’re being presented with right now is a new language regime. It differs considerably from what we’ve known for over 50 years. The impact that these new powers will have on the work of the Office of the Commissioner of Official Languages is currently being studied. Our work will certainly be subject to more judicial control than it is now. What’s the impact on our promotion work?
Our promotion work focuses a lot on the work done with communities and how they’ll change in the coming years. Efforts are carried out in a linguistic environment that has been very emotionally charged for a few years. Through Bill C-13, how will legislation be achieved that brings people together instead of dividing them? That’s a challenge that rests with parliamentarians.
With respect to these challenges, I’m from one school of thought. I was there in 1969 when the Official Languages Act was passed, so I have some experience. I think what’s being proposed is an important change that presents possibilities, but the question that must be asked is how can these opportunities be managed and used to advance official languages in Canada.
As Commissioner of Official Languages, I’m prepared to play a very active role in the work to be done to contribute to this bill.
First, this is a new language regime. For the Office of the Commissioner of Official Languages, it will require significant changes in how we operate, not only with the federal government, but also with communities and the private sector. We have no experience with the private sector. How will we work with those stakeholders? In my opinion, the considerations in the brief and my remarks today are a work in progress, since we are dealing with a bill that is historic.
The Chair: Thank you for your clarifications. Before proceeding with the second round, I see that Senator Gignac had his hand raised. If you’d like to ask questions, Senator Gignac, the floor is yours.
Senator Gignac: Thank you, commissioner and congratulations on your excellent work. On page 2 of your brief, you mention official languages governance, saying that we should have a central agency to coordinate the implementation of the act. You refer to the risk of fragmentation. I must admit that, with all the respect I have for the Minister of Canadian Heritage, as a senator from Quebec and as a francophone, I’m not very reassured to know that the Department of Canadian Heritage is responsible for the future of the French language.
Can you elaborate on your position? You say that respect for languages is not a government program because it is essentially at the heart of the Canadian federation. Are you considering the creation of an office of the French language, like the one we have in Quebec. Instead, however, it would be an office of official languages, so that one or two specific departments would not be handling this matter, but a separate entity?
Mr. Théberge: We see it being handled by a central agency, since only a few central agencies have government-wide responsibility. I come back to Keith Spicer, who was the first Commissioner of Official Languages and who said that there must be government-wide coordination. There are a few central agencies that could do it, particularly the Treasury Board. In the past, various models have been used to ensure better stewardship and better management of official languages within the federal government.
I don’t want to tell the government how to structure itself, but the Treasury Board could certainly structure this responsibility in a certain way, for example, not delegating authority to deputy heads. We’ve seen that for a long time. We’re working with federal institutions independently of each other, but they have delegated powers that they’re not necessarily using in the best way. There needs to be accountability among federal institutions, and the Department of Canadian Heritage still has a role to play. As I explained earlier, the Department of Canadian Heritage has broad expertise and a lot of experience with communities, but I think responsibility for government-wide governance should fall to an agency. In my opinion, official languages is not a program; it’s a fundamental value that should be at the heart of government operations.
Senator Gignac: I have a second question.
The Chair: Go ahead, Senator Gignac.
Senator Gignac: Look at page 9 of your brief. You refer to supervision in one’s official language of choice in regions designated as bilingual. However, the Treasury Board indicates in its directive that only employees in positions designated bilingual can be supervised in the official language of their choice. That should not be linked to the position they hold, but should instead be their choice. Can you give us more details on this? I see potential problems and inequalities if an employee is in a certain position as compared with another who is not.
Mr. Théberge: Last year, a study was conducted on linguistic insecurity in the federal government. Many employees told us that they felt uncomfortable using their mother tongue or their second language — and when I say mother tongue, I’m referring to French. If we want to create a linguistically inclusive workplace, people need to be able to work in the official language of their choice. Supervision doesn’t mean that being in an essential position means setting aside one’s mother tongue. We’re saying that, if a person is working in a region designated as bilingual for language of work purposes, they should be supervised in the language of their choice.
Senator Gignac: Thank you very much.
The Chair: Thank you. We’ll proceed with the second round.
Senator Poirier: My question is also about Part 2 of Bill C-32. With this new act, federally regulated private businesses can choose which language regime to adopt. In your opinion, what is the risk of giving businesses that choice? Why is the government giving businesses this choice?
Mr. Théberge: I can’t say why the government’s giving them that choice, but I think offering that choice will certainly cause confusion for consumers. It means that a business could decide to adopt one language regime in Quebec and another outside Quebec. It’s not necessarily clear for consumers who want to know when laws apply and don’t apply. There will be confusion.
In addition, in terms of compliance, it could clearly cause problems. There’s already a legal void in that respect. It’s not up to the Commissioner of Official Languages to decide what level of government or who has jurisdiction in this area, since I’m not a constitutional expert. When consumers deal with a business, they need to clearly know which regime the business is under to be able to have their rights respected.
Senator Poirier: Would it be possible to open the door to the provinces to offer the same choice?
Mr. Théberge: It’s hard to predict what the other provinces would want to do. I can’t speculate on that; it would be pure speculation for me to venture a response.
Senator Poirier: Thank you.
Senator Dagenais: Mr. Théberge, on the one hand, you’re pleased with the introduction of Bill C-13, but on the other hand, I note that you mentioned a very long list of problems and that, despite its weaknesses, the bill’s implementation could take several years.
Last week, the Parliamentary Budget Officer told us that this bill did not contain the funding needed to achieve its objectives, which could give the government an excuse to not act quickly. Do you think we should know the content of the future regulations before passing the bill?
Mr. Théberge: In some cases, instead of considering the regulations, maybe the inclusion of certain elements in the act should be considered. The bill will be passed by order in council, so it’s not automatic. Once the bill is passed by order in council, work can begin on the regulations.
That can take a number of years. Are there some elements that could not be included in the bill as such? The committee could look at that. It would undoubtedly be possible to require and impose a time limit before the order in council is declared. I get the impression that there can be a separation between the Official Languages Act and the Use of French in Federally Regulated Private Businesses Act because one can be passed at one time and the other at another time. How is it all linked? Considerable thought must be given to timelines and what truly needs to be included in the body of the bill.
Senator Dagenais: Thank you, commissioner.
Senator Moncion: We met with members of the Quebec Community Groups Network, who told us that that they had a concern about the use of French in federally regulated private businesses. They told us that it could put the employability of some English-speaking Quebecers at risk. I’d like to hear from you on that.
Mr. Théberge: That’s an interesting question. Obviously, for some, getting a job in a federally regulated private business or even in the federal public service.... There are similarities in competencies for getting certain types of jobs. I don’t have any data to support what was said. One piece of data that seems to often be used in Quebec is that the anglophone community is a bilingual community and that many youth are bilingual. Is there really a risk or danger? I think the issue should be examined to find out whether it would have an impact on the community. I think the use of French act — and your question raised this problem as well — worries a lot of members of the English-speaking community in Quebec. They’ve told me that many times, and I’ve mentioned it before to the committee. I think it’s important, when the work moves ahead, to consider these concerns.
I’ll come back to what I said earlier: There are two official language minority communities. There are two official languages, and, ultimately, I think a bill is needed that would make room for everyone.
The Chair: It’s my turn to ask you a question. Again on the issue of consistency, commissioner, on page 6 of your brief, you state the following:
The OLA is more than the sum of its parts. It should be thought of as a whole whose parts reinforce each other. The lack of key provisions in Bill C-13 that would enhance the obligations of institutions when communicating with and providing services to the public, and that would strengthen institutions’ obligations toward their employees, is a stumbling block to the success of the bill as a whole.
It’s a matter of consistency between Part IV, which deals with communications with and services to the public, and Part V, which deals with language of work. I’d like to hear more from you on that, so you can explain the challenges related to consistency and the importance of consistency between those two parts.
You say the following about Part V:
One thing is certain, the OLA must be modernized to ensure consistency between regions designated as bilingual for language of work purposes and offices that must communicate . . .
These are challenges regarding consistency that have been questioned for a long time. I’d really like to hear from you on this issue, commissioner.
Mr. Théberge: Regions that are designated as bilingual for language of work purposes have existed for 40 years, so it’s the same regions. However, in the last 40 years there have been a lot of changes on the ground. The new regulations include offices that must provide services in both official languages. They’re not necessarily aligned with each other. As a minimum, it would be important for regions designated as bilingual for language of work purposes to be located where there are offices that have to provide services.
What’s important about consistency is that, in order to provide services and communications, there needs to be a capacity to do so. Capacity means employees. Employees need to be supported through training and tools, and the opportunity to work in both official languages, but the regions need to be aligned, the offices and the regions designated as bilingual for language of work purposes.
Active offer is also an extremely important element. That’s what triggers an individual’s behaviour and indicates that services can be obtained in the person’s language of choice. For too long, I’ve seen the active offer being avoided in order to avoid the possibility of providing the service. That is exclusionary.
Also, is there a capacity to do so? Official languages during an emergency are a perfect example. Clearly, for a long time, in almost all emergencies, there’s been a lack of capacity to communicate with Canadians in both official languages at the same time.
Once again, 50 years ago, services and communications were the main idea. The goal was for all Canadians to be able to receive services in the language of their choice. In 2022, that’s far from the case. Most complaints that we receive are related to services and the language of communication. Throughout the history of the Office of the Commissioner of Official Languages, over 60,000 complaints have been received to date.
The Chair: Thank you, commissioner. I have another question about the travelling public and, here again, I’d ask that you explain the main challenges to us. You listed it in your brief. We’ll be meeting later with representatives from Air Canada, one of the carriers that has obligations under the Official Languages Act. There are other carriers that don’t have those obligations. The committee had made recommendations in that respect in 2019. The hope was that the other carriers would have obligations. Can you explain the main challenges for the travelling public and the need for consistency in certain provisions of Bill C-13 that would improve the situation?
Mr. Théberge: Bill C-13 mentions the possibility of imposing monitory penalties in the transport sector. It’s not fully defined, but I think it goes beyond that. I think there are a lot of institutions that affect the travelling public. Yes, there are airlines and airport authorities, which were transferred in 1992. There’s the issue of airport security and border services. Every year, that sector generates a large number of complaints. It’s important to note the obligations of those institutions in the act. I think those institutions too often have a very narrow reading of their obligations under the law.
There was a recent appeal court decision concerning St. John’s, but it was appealed. There’s no need to wait for an appeal court decision to make amendments to the act. I think the travelling public as a whole must be considered. What stakeholders have an impact on travel by Canadians? When changing airports, does the regime change? When changing carriers, does the regime change? Dealing with security officers is also part of travel. It’s very complex and it has a significant impact on Canadians. Just look at what’s happening in the industry right now. It’s important to specify these obligations in the bill. Some are already included in it, but compliance with them needs to be assured.
The Chair: Does that explain the need for or the challenge of consistency between Part 1, the Official Languages Act, which is being modernized, and Part 2, the Use of French in Federally Regulated Private Businesses Act? Obviously, the ecosystem we’re discussing includes a lot of private businesses.
Mr. Théberge: Some corporations will be subject to the Official Languages Act, and others will be subject to the Use of French in Federally Regulated Private Businesses Act. They’re not the same obligations.
The Chair: Thank you for the clarifications. Thank you very much, commissioner, for your presentation. Thank you, as well, to the team at the Office of the Commissioner of Official Languages, who support you in work that’s so important to us. As I said in the beginning, this is a pre-study.
It’s not known exactly when Bill C-13 will arrive from the House of Commons, but you’ll clearly be invited again to speak on the bill, which will have been amended as decided by the House of Commons.
Thank you very much, commissioner and the members of your team.
Colleagues, for the second part of our meeting, we have before us representatives from the transport sector.
First, from Air Canada, we have Mr. David Rheault, Vice‑President, Government and Community Relations, and Mr. Marc Barbeau, Executive Vice President and Chief Legal Officer. We also have Mr. Chris Phelan, Vice President, Government and Industry Affairs with the Canadian Airports Council.
Welcome everyone, and thank you for being with us. I’d like to note that Senator Loffreda has joined us for our second panel.
Mr. Rheault, the floor is yours.
David Rheault, Vice President, Government and Community Relations, Air Canada: Thank you, Mr. Chair. First, I’d like to thank you for the invitation to appear before you today. I’m here with my colleague, Mr. Marc Barbeau, Executive Vice President and Chief Legal Officer at Air Canada.
To begin, I’d like to share a few words with you on Air Canada’s commitment to official languages. First, know that we’re determined to continue meeting our obligations. At Air Canada, serving our clients in the language of their choice is a priority.
Over the years, we’ve adopted a series of measures that we’re continually improving. For instance, our priority is always the recruitment of bilingual employees. We offer language training courses and awareness modules to all our employees. We have staff assignment systems to ensure that bilingual services are available throughout our worldwide network. We support many organizations and events that are essential to the vitality of official language minority communities across Canada.
There’s always room for improvement, but we’re extremely proud of the efforts of our thousands of employees every day to serve Canadians in the language of their choice.
We’ve read Bill C-13, which is the fruit of many years of consultations in which we have been actively involved.
First, we note the measures in the bill that will help improve the place of French and the offer of services in both of Canada’s official languages. Those measures include the adoption of a francophone immigration policy and the mandate given to the Minister of Heritage to allow anyone to learn English and French if they so wish.
That said, to improve the bill, we propose amendments concerning two main objectives. The first is to ensure the uniformity of the applicable obligations and the powers of the commissioner in regard to all airlines, as proposed by this committee in its 2019 report on the modernization of the act. The second is to ensure that the commissioner’s new powers are implemented in a fair and equitable way, particularly so that measures adopted by airlines to meet their obligations are considered.
We note that Air Canada is currently the only airline with official language obligations, while laws and regulations that set out other rights for passengers apply to the industry as a whole.
The bill is a step in the right direction in this sense for the travelling public, but it should be clearer and clarify the nature and scope of travellers’ rights.
As it’s worded, the bill creates a new concept, that of regions with a strong francophone presence, but the definition and scope of that concept will come from the regulatory process.
Clear rules set out in the Official Languages Regulations already establish a method for calculating significant demand for air services in Canada.
Rather than creating two parallel language regimes, with the confusion that would cause among travellers, you are encouraged to use the existing concepts and state that, for air transportation, routes and airport services subject to bilingualism obligations are determined using the calculation of significant demand set out in the regulations.
That approach would ensure uniformity in the industry, as this committee recommended, and passengers would be the winners, being entitled to the same services, regardless of the carrier they choose.
Similarly, the bill gives various powers to the commissioner depending on the entities in question. For instance, the power to issue monetary penalties is limited to Crown corporations and businesses subject to the Official Languages Act under another act, as long as they operate in the transport industry and provide services to travellers.
The government has not only excluded itself from that new power, but has also excluded other entities that the bill intends to target.
In our opinion, this is a lack of consistency and uniformity. That said, we have always been determined to meet our language obligations, just like our other obligations, regardless of the measures adopted by the authorities that govern us.
We believe that the commissioner’s new powers should be implemented in a fair and equitable way. We propose that the bill be amended to allow entities subject to the commissioner’s new powers to invoke a due diligence defence, to show that they’ve been diligent in discharging their obligations.
This is a well-known concept in law that the bill rules out in all cases, without regard for the consequences. In our opinion, this approach does not consider the major efforts made by entities to meet their obligations, which should be considered in any enforcement activities.
I thank you for listening. My colleague and I are available to answer your questions.
The Chair: Thank you very much for your presentation, Mr. Rheault. We’ll give the floor to Mr. Phelan and, then, proceed with questions.
Mr. Phelan, you have the floor.
[English]
Chris Phelan, Vice President, Government and Industry Affairs, Canadian Airports Council: Honourable senators, thank you for the opportunity to appear before this committee. The Canadian Airports Council is pleased to share our perspective on Bill C-13.
The CAC is the voice of Canada’s airports. Our 58 members represent more than 100 airports, including all National Airports System airports and many regional airports.
Prior to the pandemic, Canada’s airport sector saw over 160 million passengers, employed more than 200,000 people, generated more than $19 billion in GDP and paid for more than $400 million in ground lease rent to the federal government.
Canada’s airports are strongly committed to providing the highest levels of customer service, including meeting obligations under the Official Languages Act, to provide services to travellers in either of Canada’s official languages. Canada’s airports are filled with travellers with a multitude of language needs, including a growing number of travellers who speak neither of Canada’s official languages. As international travel, as a share of overall travel, continues to grow for Canada’s airports, we can expect that demand for minority language services will grow as well. Also expected to grow are the needs of our aging population and a growing contingent of travellers with mobility needs.
Canada’s airports are committed to serving the needs of all of those passengers to the best of their abilities and in the most effective way possible. We believe there is ample evidence that we are doing so successfully. In fact, excellence in passenger experience is a hallmark of Canada’s airports. Each year, our airports score top marks on international customer service rankings from Skytrax and Airport Council International’s Airport Service Quality Awards. ASQ is a global program to recognize the best airports in the world according to passenger satisfaction surveys. Numerous Canadian airports come out on top year after year in North American and world rankings.
In our analysis of Bill C-13, we have identified two sources of concern and one positive element.
The first is the creation of administrative monetary penalties for non-compliance with the Official Languages Act. Airport authorities directly control only a small portion of the services and businesses that operate inside the airport. In fact, the majority of traveller interactions are with non-airport personnel, including domestic and foreign air carriers, security screeners, border officers, and food, beverage and retail concession operators. While airports do have bilingual requirements written into contracts with their tenants, in many parts of the country with low minority-language populations, the ability to hire bilingual staff is a major challenge, particularly for the many service-level positions staffed throughout the airport terminal.
Airports worry that these administrative monetary penalties will be levied against them even when their best efforts and intentions to offer bilingual services fall short.
Second, the act provides the commissioner with the new power to issue orders when compliance mechanisms, including new compliance agreements, fail to deliver the results the commissioner is seeking. Without knowing more, the order‑making power could be a very broad and powerful tool to force compliance.
Finally, we recognize there is also some good in Bill C-13, in particular the amendments to section 58. These powers to the commissioner will make it easier to dismiss complaints and save the time and effort of both the commissioner’s office and airports in addressing outdated and already resolved issues.
Once again, Canada’s airports are strongly committed to providing the highest levels of customer service, including meeting obligations under the Official Languages Act. We thank you again and would be pleased to answer any questions.
The Chair: Thank you very much, sir. We are ready for the question-and-answer period. As we said before, we have five minutes for questions and answers, and we’ll follow that guide for the next hour.
[Translation]
First, I’ll give the floor to Senator Poirier. Colleagues, please indicate who your question is for.
Senator Poirier: My question is for both witnesses and is first related to Part 2 of Bill C-13. Last week, witnesses from FETCO shared their concerns about the uncertainty surrounding Part 2, saying that there were no regulations. They don’t know what to expect. Do you share the same concerns, and should we remove Part 2 of Bill C-13 and ask the government to take the time to properly define the key elements before the bill is passed instead of after?
Mr. Rheault: Part 2 of the bill, is that the part that applies to federally regulated businesses, the new part that the commissioner called the UFA?
The Chair: Yes, it’s the Use of French in Federally Regulated Private Businesses Act.
Mr. Rheault: Very good. With respect to the application of that act, it must be understood — and we tried to explain this in our presentation — that that part does not cover businesses that are already subject to the Official Languages Act under another act. For instance, Air Canada is subject to the Official Languages Act under the Air Canada Public Participation Act.
As a private business, Air Canada will nonetheless remain subject — I don’t know whether its called Part 1 — to the Official Languages Act as it stands now. The same is true for airports, which are subject to the act because they were privatized by the government.
What we said in our presentation is that the regime that will apply to other airlines under Part 2 of the bill must be consistent with the regime currently in place in Part 1, so that passengers can make sense of it all. Under the current act, regulations define which routes and services at which airports must be bilingual. If these concepts are defined for other airlines, it’s important that it be the same thing, or passengers will be confused by the regimes.
[English]
Senator Poirier: Mr. Phelan, do you have any comments?
Mr. Phelan: Yes. As I understand it, as National Airports System airports are already captured under the Official Languages Act, Part 2 would not apply. Given the various governance models, most airports are municipal entities, so I don’t believe this act would apply. But I’m still learning more and would happily be corrected.
[Translation]
Senator Poirier: Do I still have time, Mr. Chair?
The Chair: Yes, but there’s a bit of a technical challenge.
Thank you, Mr. Rheault. We’ll come back to this. I’m sorry, I don’t know where we were.
Senator Poirier: I had a question, Mr. Chair.
The Chair: Go ahead, senator.
Senator Poirier: I had other questions, but I don’t know whether it’s worth asking them, if I’ve correctly understood the responses. Are you telling me that you have no obligation under Part 2 of Bill C-13 and that it doesn’t affect you at all? Did I understand that correctly?
Mr. Rheault: What we explained was that Part 2 creates obligations for businesses that are currently not subject to any language obligations. Air Canada and airports are already subject to the Official Languages Act, so, no, Part 2 doesn’t change that. The obligations that apply to Air Canada are in the current act, which will be amended by Bill C-13, so —
Senator Poirier: With respect to your current obligations under the Official Languages Act, there’s nothing in Part 2 of Bill C-13 that covers that, because you’re already covered. Did I understand that right?
Mr. Rheault: Exactly. For instance, I don’t know whether we can call it Part 1, but the Air Canada Public Participation Act will be amended in that the commissioner will have more powers, particularly the power to issue monetary penalties. What Part 2 sets out, however, is a new language regime for federally regulated businesses that are not covered by the current act.
This includes other airlines, telecommunications companies and banks, but Air Canada’s obligations under the Air Canada Public Participation Act are already set out in the current regime. The locations where those obligations apply are already defined by regulation.
Senator Poirier: I was just a bit surprised because we’re studying Part 2 while, in reality, it doesn’t affect you at all.
The Chair: If I can ask a follow-up question to clarify yours —
Senator Poirier: Please.
The Chair: This is a follow-up question. That means that, in a specific case, Air Canada is subject to the Official Languages Act and that another airline would be subject to the Use of French in Federally Regulated Private Businesses Act.
Mr. Rheault, is Air Canada concerned by this different regime for airlines that have the same mandate, transporting travellers in Canada?
Mr. Rheault: Indeed, our public position, which was set out in the Senate committee’s 2019 report on the modernization of the act, is that there needs to be some uniformity in the regimes applicable to the industry as a whole. The definition of significant demand applicable under Part 2 must be consistent with the one applicable under the current act.
Senator Poirier: Thank you.
The Chair: Thank you very much for that response.
Senator Gignac: Welcome to the witnesses.
Mr. Rheault, I have no trouble with your surname, because one of my best friends in school was Ms. Rheault. Part 2, as you you just said, is the part related to the Use of French in Federally Regulated Private Businesses Act. We’ve understood the distinction you wanted to make.
What’s interesting to me is the use of French at Air Canada, since your head office is located in Montreal.
I have two brief questions for you. The first is about the possibility for a francophone employee currently working for Air Canada in Montreal to have access to a meeting in French. I’m not talking about a group meeting with several people, which I gather would undoubtedly be held in English.
However, during the francophone employee’s annual performance appraisal with their manager, for example, is the employee able to speak in French and have their manager respond in French?
That’s what Part 2 of this bill is about, although I fully understand that it wouldn’t apply to Air Canada.
Mr. Rheault: Absolutely. I can speak from my own personal experience: My performance appraisals are always conducted in French with my manager, who’s bilingual.
Senator Gignac: All francophone employees working in Quebec, as part of their annual appraisal, have the same opportunity to speak in French with their manager, whether anglophone or bilingual, and are thus able to hold a conversation in French?
Mr. Rheault: Yes, and employees can choose the language in which they want to receive communications. They also choose the language for their appraisal process.
Senator Gignac: Perfect. That’s reassuring.
My second question will be very brief and is related to presentations to the board of directors. I’ve worked at various financial institutions, and some boards use simultaneous interpretation services so as to not penalize managers or specialized employees who need to give presentations in the language of their choice to the board of directors.
On the Air Canada board of directors, is there currently a simultaneous interpretation system in place for directors, so that francophone employees or managers can use the language of their choice in their presentations?
Mr. Rheault: For that question, I’ll have to check with the corporate secretary, since I don’t attend board of directors’ meetings.
Senator Gignac: Please. Mr. Chair, that is to be noted. Thank you, Mr. Rheault.
The Chair: Thank you, Senator Gignac. Thank you, Mr. Rheault. That’s information that could be relevant for us. Please follow up on that question.
Senator Loffreda: I thank our witnesses for being with us this evening.
[English]
My question is for the Canadian Airports Council’s Mr. Chris Phelan. You did express two areas of concern. How would you mitigate these risks? Do you feel you can mitigate these risks? How concerned are you about how you see their management going forward? I would like you to elaborate on these issues if you can.
Mr. Phelan: Thank you for the question. The core issue comes down to a lack of awareness clarity within the legislation on exactly how the administrative monetary penalties or order-making powers will work. I think it was touched on in the previous session that more detail could be provided. That’s really where our concerns as an industry lie. Right now, these are new tools, unknown in their application. We would just like to know more. We are not opposing them, we are just seeking greater information behind them.
Senator Loffreda: Would you see any ways of improving this bill or legislation? Are there any concerns that you have discussed with your colleagues or your management that you would like to bring forward, saying here is one amendment we feel should be made to knock off the uncertainty? We talk about uncertainty and costs, but concerning the uncertainty, is there any way that you see it could be improved?
Mr. Phelan: It is the regular problem with Canadian legislation. It is often very broad and the detail comes out in the regulations, so it is really without the regulatory language going hand in hand on it. We have some questions. At present, we do not have any amendments to propose to Bill C-13.
Senator Loffreda: Okay. Were you consulted?
Mr. Phelan: There was a discussion paper and we made a submission to that process. That was the extent of our consultation, I believe.
Senator Loffreda: Were you satisfied with the consultation or did you feel it should have been more in depth or more thorough? Were you satisfied with that process?
Mr. Phelan: I can’t say we were dissatisfied with the process.
Senator Loffreda: Thank you.
[Translation]
My next question is for Mr. Rheault from Air Canada. Thank you for being with us.
If I understand correctly, you said that Bill C-13 doesn’t involve any amendments. With respect to the process for hiring or training employees, does Bill C-13 have a financial impact on Air Canada or not?
If Bill C-13 has no impact on Air Canada, what about the impact of Bill 96 in Quebec? How do you view the bill and its impact on Air Canada?
Mr. Rheault: I thank you for your question, senator. I wouldn’t say that Bill C-13 has no impact on Air Canada because Bill C-13 involves new obligations for private businesses not already covered by the act. There are also new powers granted to the commissioner, and that changes how the act is implemented. In that respect, those changes will apply to entities that are already subject to the act, including Air Canada.
Now I’ll turn to your second question, about Bill 96. For the entire issue of application of language regimes in Quebec and Part 2 of the federal legislation, which, as I understand it, will give the choice to federally regulated businesses, Air Canada — which is subject not to that part, but to the act as it currently stands — will continue to meet its obligations under the federal legislation. Its efforts will focus on that.
That said, other aspects of Bill 96 will amend other laws of general application in Quebec, and that will have an impact on all businesses such as Air Canada. For instance, with respect to filing legal proceedings, the Code of Civil Procedure will be amended. These elements will affect all businesses in Quebec.
Senator Loffreda: Thank you very much.
Senator Dagenais: My first question is for Mr. Phelan.
The Government of Quebec wants federal agencies, such as airports located in Quebec, to give preference to French in their signage. That means that the word “bienvenue” would be in a larger font than the word “welcome,” particularly at the Montréal-Trudeau International Airport. Do you see that demand as positive? If not, why?
[English]
Mr. Phelan: Airports are subject to the Official Languages Act. I think we would have to honour our federal obligations. That’s where we likely should stand, I believe. I think if the signage were changed, that airport would then be in violation of the Official Languages Act, so it would be a significant challenge. Currently, they are federally regulated under the Official Languages Act.
[Translation]
Senator Dagenais: Thank you. My second question is for Mr. Rheault.
We know that a particularly large number of complaints have been filed with the Office of the Commissioner of Official Languages against Air Canada. Do you have an analysis of those complaints and their merits? That information would tell us where most of the complaints lie.
Also, do you fear that some provisions of Bill C-13 could lead to an increase in the number of complaints?
Mr. Rheault: It’s true that complaints are filed every year against Air Canada. To put things in perspective, I would say that many complaints this year were related to one specific event. Prior to that, there were about 80 complaints per year against Air Canada. This is a company that flew 50 million passengers in 2019. In addition, each customer can have five or six points of contact with the company.
When you make a reservation, go to the airport, check in, go to the lounge and board the aircraft, each of these steps represents a point of contact, so there are many. Obviously, we try to have as few complaints as possible. However, when we compare the number of complaints against Air Canada with the number of complaints filed against other federal institutions, the volume of clients and the number of interactions we have with passengers need to be taken into account.
That said, our objective will always be to improve our efforts and the measures put in place, regardless of the powers of the commissioner. What’s important to us is to provide our clients with bilingual service.
Senator Dagenais: Mr. Rheault, I’d now like to talk about training for employees. Do you have any data on the number of employees who receive training to allow them to offer services in French? Is that training reserved only for those who are in contact with the public, or is it open to all employees? What proportion of anglophones register for that training?
Mr. Rheault: I don’t have all those details, but I can tell you that training is offered to employees who serve the public and to managers. Our training is adapted to various employee needs. For instance, we offer retention courses for bilingual employees who don’t often practise because they work in areas where French is less prevalent. Each year, these people take intensive classes to maintain their skills. We offer upgrading courses and other courses to employees of the company based on their needs.
Senator Dagenais: I don’t want you to think it’s a trick question, but I know the Royal Canadian Mounted Police offers a bilingualism bonus. Would it be possible to offer that type of bonus at Air Canada?
Mr. Rheault: The recruitment of bilingual employees is always a priority for us. This year, for example, we offered an incentive to employees to help recruit bilingual individuals. It’s a recruitment incentive.
Senator Dagenais: Thank you, Mr. Rheault.
Senator Clement: Good evening and thank you to the witnesses.
My questions are related to those asked by Senator Dagenais. The issue of employees and the investments Air Canada must make to train employees is always interesting to me. Are you able to tell me how much you invest in language training?
Mr. Rheault: I don’t have the exact figure, but it’s millions of dollars per year.
Senator Clement: I’d like more details on your comments about the due diligence defence. Could you tell us what you’d like to see in that respect?
Mr. Rheault: I’ll give an example and my colleague, Mr. Barbeau, can add to it. I’m a lawyer by training, but it dates back a bit further for me than for my colleague.
Due diligence is a defence that can be invoked when accused of an offence under regulatory law. That defence allows the accused to show that they made all reasonable efforts to avoid committing the offence, even when it was committed. I’ll give you a concrete example. We received complaints about flights with significant demand. I have an example in mind that was cited in the commissioner’s report. The incident occurred on a flight from Montreal to Bathurst, when a flight attendant was unable to serve the employee in the language of their choice. We conducted an investigation into that case.
As I’ve told you, we have a system for assigning staff. We realized that the flight attendant assigned to the flight was ill and had to be replaced that day. A bilingual flight attendant could not be found to replace the individual at the last minute. Over a period of three months, we realized that it had happened only once, and there were three flights per day at the time.
That’s an example where it could be presented to the court that diligent measures were taken to avoid the situation. That doesn’t mean the court would accept that defence. However, we have the opportunity to present the measures we put in place.
Marc Barbeau, Executive Vice President and Chief Legal Officer: Mr. Chair, if I may —
The Chair: Go ahead.
Mr. Barbeau: My colleague, Mr. Rheault, gave a good answer to your question because his law training wasn’t that long ago. I’d add that this defence was recognized by the Supreme Court many years ago, and, as Mr. Rheault said, it applies to many regulatory offences. What’s unique about this legislation is that it eliminates the ability to cite this defence. As Mr. Rheault said, it’s not automatic; it’s the opportunity or possibility to argue that efforts were made to present all the facts and circumstances to the court. It would then be up to the judge to determine whether or not the defence should be permitted based on all the circumstances presented.
That’s the context of our comment. There needs to be the opportunity to show the efforts that were made if a situation comes up in which there are allegations that our obligations were not met in a specific case.
[English]
Senator Clement: Mr. Phelan, I flew from Ottawa to Regina recently. It was my first flight since the pandemic started. It was an officially bilingual disaster on my part. I forgot to take off my shoes, and I forgot to take out my laptop. It was me being not prepared. But I was served properly in French and English.
In fact, I was surveyed afterward. Somebody approached me with a digital survey to ask about my experience going through security and whether I was served properly in French and English.
I’m not sure if that was the airport surveying me. I have a question about whether you are doing that actively or whether your folks are surveying travellers.
The other question I had was around you saying that you worry about penalties because you are not able to staff appropriately in terms of people who are able to provide services in both official languages. What are you proposing, then, around penalties? What specifically are you saying there?
Mr. Phelan: Thank you for the question. Regarding surveys, I touched on that in my opening remarks. There are ongoing surveys, in terms of experiential surveys on how the airport did and performed its role in terms of customer service. That could include service in both official languages. As well, I do believe CATSA frequently surveys passengers to ensure they are upholding their official languages obligations.
In terms of penalties, the real concern is that airports only control a small segment of your travel process. They don’t run the concessionaires, the magazine stores or things like that; yet airports are the responsible entity under the Official Languages Act. So an experience where a traveller is not provided the official languages experience that they require falls upon the airport, not upon the entity serving them.
It is that ability, which touches on David’s earlier comments about due diligence and the efforts that airports take to work with their concessionaires to try to ensure, because it’s in their contracts, that there are bilingual staff during shift work and that type of thing, but it doesn’t always materialize the way we wish.
So it’s being held responsible for a service that is not executed by the airport and how those penalties will be rolled out.
[Translation]
The Chair: Before giving the floor to Senator Moncion, I’d like to ask you a question. I understand that you didn’t draft Bill C-13, but why, in your opinion, was this option of due diligence eliminated? In your opinion, why would Parliament have done that?
Mr. Barbeau: If I may, it’s impossible to know why this option was eliminated. There’s at least one decision where the issue was raised. It may have been after that decision that the issue came up. Steps could have been taken to clarify the position in the sense that you saw and in the sense that, in our minds, an important option that should be available was eliminated — being able to demonstrate our efforts.
One of the positive elements of the due diligence defence is that it encourages businesses to make efforts and take measures. That’s consistent with the intent of the law, that all corporations and businesses in question make every possible effort to meet their objectives. This defence is a bit of a carrot for businesses, telling them that they have the opportunity to present to a judge the reasonable and necessary efforts made to discharge their obligations and to explain to the court how that may be relevant in a particular case.
Senator Moncion: My question is along the same lines.
With respect to what you told us about the due diligence defence being eliminated from the bill, what do you fear in terms of future penalties? I gather that you will need to continually defend yourselves? Is your fear related to the work of constantly defending yourself or the penalties? What can be done to correct the situation and make it more manageable for Air Canada and airports, among others?
Mr. Barbeau: I’ll begin answering your question, and maybe my colleague could add to my response.
This is a shift to a regime where the Commissioner of Official Languages has the power of recommendation to another regime. It’s a power that has existed for several decades. This is a shift to a regime where the Commissioner of Official Language is being given the power to issue orders and monetary penalties. Mr. Rheault explained that our philosophy toward compliance is driven by principles and values. That’s true for official languages, as it is for anything else. Our compliance values are important, and that’s particularly true for our langrage obligations. Our everyday operations aren’t driven by a desire to avoid penalties. On the contrary, they’re driven by a greater value, that of meeting all our obligations, language or otherwise.
What concerns us about what’s being proposed is, in particular, whether it will be possible to present the efforts we have made in the face of measures that the Commissioner of Official Languages might take against us. If there are measures to be taken — if the Commissioner of Official Languages sees a situation where he feels that measures must be taken — that’s part of the new environment in which we’ll operate. Moreover, it’s in that environment that all our activities take place. When there’s a concern, we want to be able to respond, before a judge, to show the efforts that were made. Ultimately, it will be up to the judge to decide whether or not it’s a defence that can be accepted.
There’s a sense that this option of a due diligence defence, which I believe is set out in the Canada Transportation Act, is relevant to our activities. It’s important to maintain it. I don’t know whether Mr. Rheault has anything to add.
Mr. Rheault: No, I have nothing to add. Thank you.
Senator Moncion: I want to come back to what you said, that it’s important to maintain the defence. It was removed from the bill, so you might have an amendment to present to us to have it reintroduced into the legislation. Do I understand that right?
Mr. Barbeau: Thank you for the question.
It’s interesting, because it was removed from section 69 of the act, which eliminates the option of presenting a due diligence defence. As we speak, the act is silent. There is no regime in which the Commissioner of Official Languages can issue orders or administrative penalties. It’s presented here in a context in which the Commissioner of Official Languages is given powers and this due diligence defence is eliminated.
The issue came up in other circumstances, but not in the one that the new act will present, namely penalties issued by the Commissioner of Official Languages. There’s nothing explicit at this time in the act. The act is silent on this issue.
Senator Moncion: Thank you. That may be an aspect that can be examined.
I have another question about the number of travellers who fly with Air Canada in a given year, for instance, 2019. We heard earlier that 50 million travellers transit through Canadian airports.
Mr. Rheault: Air Canada has 51 million passengers.
Senator Moncion: Air Canada alone?
Mr. Rheault: Air Canada alone.
Senator Moncion: Then, you were the subject of 80 complaints from among 51 million travellers?
Mr. Rheault: Approximately. The commissioner said that there was an average of 50 to 80 complaints per year. In recent years, between 2009 and 2019, Air Canada has seen a lot of growth. I think the number of passengers increased by over 50%. Our company transported 30 million passengers, and, in 2019, we reached 50 million passengers. Despite this remarkable growth, the number of complaints has always remained stable.
Senator Moncion: Thank you. I think the 50 million passengers were at the airport in Toronto on Friday morning at 5 a.m. They were all there at the same time.
Senator Gignac: I’m asking my question as a senator rather than a former good customer with Elite and then Super Elite status with Air Canada in my work as a chief economist with various financial institutions.
We’re lucky to have Mr. Barbeau, Executive Vice President and Chief Legal Officer, with us.
I’d like to have an answer this evening and not wait for one in writing.
Mr. Barbeau, you regularly take part in the Air Canada board of directors' meetings. Can you tell us whether there are simultaneous interpretation services for directors? Personally, I’ve always had the opportunity where I worked to give all my presentations in the language of my choice. I also know of institutions that are not even governed by the Official Languages Act. In Quebec, a simultaneous interpretation service is available for boards of directors so as not to adversely affect francophones who are asked to give presentations.
I’m asking you this question, Mr. Barbeau: Are there or are there not simultaneous interpretation services for Air Canada’s board of directors?
Mr. Barbeau: There is a simultaneous interpretation service that is used in meetings with employees. When I’ve been there, that service has not been used by the board of directors, but I don’t see why it couldn’t be. At Air Canada, every employee can speak the language of their choice. If someone wanted to give a presentation in French, I’m convinced that the necessary steps would be taken to make that possible.
Senator Gignac: That’s a commitment from you: If a francophone manager wanted to speak his mother tongue — as was the case in my career as an economist and now that I’m a senator — that manager could make that request and you would take the necessary steps.
Mr. Barbeau: I have no hesitation in making that commitment. Even without explicit instructions, I have no doubt that our board of directors —
Senator Gignac: Secondly, are employees required to communicate in English, by email or otherwise, or is it possible to communicate in French using a translation service?
When we gave presentations before the board of directors, we used slides. Must that be in English, or can it be done in French with a translation service?
Mr. Barbeau: Air Canada has a translation service. It’s used for presentations to employees and other situations, so the service is available at Air Canada, and if someone wanted to use it, it would be easy to organize.
Senator Gignac: Thank you, Mr. Barbeau, because I believe that’s important. Since each of us has held various positions in our careers, the fact that such a service is seen not as an impediment, but rather as an asset can make all the difference. It’s important to be able to speak in both official languages.
The Chair: Thank you for that question, Senator Gignac. It ties in with concerns that there may be within federal institutions. The ability to use translation services at various levels is important. That’s why Part V of the Official Languages Act is so important, and why it must adjust to that reality so everyone can work in the language of their choice.
[English]
My question is for Mr. Phelan. I will ask it in French because I am more comfortable, but I’ll try to be clear.
[Translation]
I’ll ask you the question in French. First, your organization, the Canadian Airports Council, has 58 members, and about 21 airport authorities have obligations under the Official Languages Act. Is that right?
Not all your members have obligations under the Official Languages Act?
[English]
Mr. Phelan: That’s correct. I think you’re very close with the numbers, yes.
The Chair: Thank you for that.
[Translation]
How many members do you have in Quebec, in addition to Aéroports de Montréal?
[English]
Mr. Phelan: We have two others.
The Chair: I have another question for you.
[Translation]
There’s one airport in Quebec that doesn’t fall within the National Airport System definition. Given that the purpose of Part 2, the Use of French in Federally Regulated Private Businesses Act, is to foster and promote French, should airports in that province not be required to promote French under Part 2, since that is its purpose?
[English]
Mr. Phelan: It would depend on the governance structure of it. As most smaller or regional airports are municipal entities, I do not believe so, but I would need to ask an expert to opine on that. I believe most smaller airports would fall under the municipal boundaries and not be private businesses.
[Translation]
The Chair: You’re saying that some are not federally regulated private businesses. Is that right?
[English]
Mr. Phelan: They would be federally regulated municipal businesses. That is my understanding.
[Translation]
The Chair: Thank you. It’s an important question that we could look at in depth to understand how the airport system works and how the Use of French in Federally Regulated Private Businesses Act will be applied. I thank you for your answer.
Since no one else has any questions, as you may know, the Senate is sitting this evening. I’d like to thank you for being here.
Mr. Barbeau, Mr. Rheault, thank you very much for your presentation and your answers to our questions, which will help our pre-study. As I always say, one day, there will be a real review of the bill when it’s sent to the Senate and those questions will surely be asked.
Thank you, colleagues. Unless otherwise indicated, this is our last meeting before the end of the session. I’ll take this opportunity to thank you for your contribution, your participation and your commitment to official languages. I think we’re all anxious to study Bill C-13. Thank you all. Have a good evening, and we’ll see each other soon.
(The committee adjourned.)