Proceedings of the Standing Senate Committee on
Official Languages
Issue No. 37 - Evidence - Meeting of February 25, 2019
OTTAWA, Monday, February 25, 2019
The Standing Senate Committee on Official Languages met this day, at 4 p.m., to examine Canadians’ views about modernizing the Official Languages Act and, in camera, to consider a draft agenda.
Senator René Cormier (Chair) in the chair.
[Translation]
The Chair: Honourable senators, the Standing Senate Committee on Official Languages is continuing its examination on Canadians’ views about modernizing the Official Languages Act. Today, we continue with the fifth theme of the study, dealing with federal institutions.
We are pleased to have with us today, from Public Services and Procurement Canada, Michael Mills, Associate Assistant Deputy Minister, Real Property Services, and Lucie Levesque, Director General, Real Property Services. They are accompanied by Jessica Sultan, Senior Director, Real Property and Materiel Policy Division, Treasury Board of Canada Secretariat.
Before I open the floor to our witnesses, I invite the committee members to introduce themselves, starting on my right.
Senator Jaffer: My name is Mobina Jaffer, and I’m from British Columbia.
Senator Moncion: Lucie Moncion. I’m from Ontario.
Senator Gagné: Raymonde Gagné from Manitoba.
Senator Maltais: Senator Maltais from Quebec.
The Chair: I’m Senator René Cormier from New Brunswick. Welcome, Mr. Mills. The floor is yours.
Michael Mills, Associate Assistant Deputy Minister, Real Property Services, Public Services and Procurement Canada: Mr. Chair, thank you for this opportunity to speak about the disposal process. My name is Michael Mills. I’m the Associate Assistant Deputy Minister of Real Property Services at Public Services and Procurement Canada.
As Associate Assistant Deputy Minister, I’m responsible for real property that may undergo disposal. Our department plays two key roles in the disposal process. First, we ensure sound stewardship of federal properties and dispose of real property assets efficiently and responsibly. Second, we assist other government departments and agencies with the disposal of surplus property as a common service organization.
[English]
In carrying out this role, PSPC must adhere to the directive on the sale and transfer of surplus real property from the Treasury Board. When following this role, we’re trying to ensure all of our disposals provide the general public with an opportunity for an equitable transaction with the government, that sales and transfers of surplus property follow an efficient process that is fair and transparent, while considering the whole-of-government perspective. Taking total consideration received or given by Canadians must take into account market value and best value for Canadians.
We also consider the environment, heritage, Indigenous rights, and both the strategic and routine disposals. Finally, the interests of communities, including official language and minority communities must be considered as part of the disposals.
In December 2015, the current Treasury Board directive on the sale and transfer of surplus real property was amended to include official language minority communities. As real property custodians, PSPC has developed internal procedures to ensure it meets the obligation in the disposal of surplus property. In July 2017, Public Services and Procurement Canada implemented a new internal administrative process that reminds provinces, territories and municipalities to consider official language minority community needs during disposal priority circulation process.
More recently, the department reviewed its processes to identify any areas for improvement in the way that it undertakes its real property disposals and to ensure it reflects the new legal obligations relating to official languages.
As a result, PSPC has adapted its procedures to ensure compliance —
[Translation]
The Chair: Mr. Mills, would you mind slowing down a bit so our interpreters can follow?
[English]
Mr. Mills: I’m sorry.
PSPC is strongly committed to meeting the obligations under section 41 of the Official Languages Act across its service lines.
The department recognizes the impact that real property disposals can have on official language minority communities. Therefore, it continues to raise awareness of the programs and services available to Canadians, federal departments and agencies, and helps stakeholders take full advantage of these initiatives.
Moving forward, PSPC will continue to work closely with the Treasury Board of Canada Secretariat and other partners to ensure we’re following the law and taking into consideration the interests of official language minority communities.
PSPC recognizes the importance of its role as real property custodians and is committed to supporting official language minority communities in Canada. The department will continue to promote, support and defend bilingualism in Canada, including with respect to the management of federal real property.
[Translation]
I will be happy to take your questions. Thank you.
Jessica Sultan, Senior Director, Real Property and Materiel Policy Division, Treasury Board of Canada Secretariat: Thank you. My name is Jessica Sultan. I’m the Senior Director of Real Property and Materiel Policy at the Treasury Board of Canada Secretariat.
I’m honoured to be here today to speak to you about the Treasury Board policy on management of federal real property. One area of the administrative policy deals with the management of real property throughout its life cycle, from acquisition, operation and maintenance to disposal. I’m here today to talk to you about the requirements of the policy pertaining to management of federal real property.
[English]
The Treasury Board policy on management of federal real property is a principles-based policy that was approved in 2006, and applies to all departments and agencies listed in Schedules 1, 1.1 and 2 of the Financial Administration Act. Given that not all of these entities manage real property, the policy effectively applies to only 26 custodians. I would note that the policy does not apply to Crown corporations, except as it pertains to reporting and unless precluded by specific legislation.
[Translation]
The principle of sound stewardship underscores the objective of the policy, which is to ensure the sustainable and financially responsible management of federal real property, throughout its life cycle, to support the cost-effective and efficient delivery of government programs. Deputy heads are accountable for compliance with the Treasury Board requirements for real property. The Treasury Board Secretariat of Canada monitors departmental performance in the management of real property and can make recommendations to the Treasury Board on necessary policy changes and specific departmental transactions.
[English]
The effectiveness of real property policy requirements is something that the Treasury Board of Canada Secretariat is currently examining in support of the direction given to the Treasury Board president in her mandate letter to review policies to reflect a more modern approach to comptrollership. Over the past two years, we have held consultations with departments on the real property policy requirements.
[Translation]
I would be happy to answer your questions. Thank you again for this invitation.
The Chair: Thank you for your presentations. We will now move on to questions and answers and discussion with our senator colleagues.
Senator Gagné: Welcome and thank you for your presentations. Mr. Mills, I just want to ask for clarification on one point. In your presentation, you mentioned a date when you amended the directive. When was that?
Mr. Mills: It was in December 2015.
Senator Gagné: Is the directive actually working as intended, in terms of buildings being sold off to serve an official language minority community? Has anyone benefited in that respect since the directive was adopted?
Lucie Levesque, Director General, Real Property Services, Public Services and Procurement Canada: I can take that question. The answer is yes, to a certain extent. The Department of National Defence has asked us to carry out the circulation process for one of their properties located in Quebec City, in the Sainte-Foy district. In the letters that were sent to various levels of governments, specifically municipal and provincial, we added a reminder about identifying the interests of official language minority communities. This circulation process isn’t over yet, but the Province of Quebec has expressed an interest in establishing an English-language school in that community. The process is still under way, but yes, in this specific case, it did have a benefit.
Senator Gagné: Do you have any examples from outside Quebec?
Ms. Levesque: Outside Quebec, the French school board in Vancouver indicated interest in the Heather Street property and the Jericho property. That interest was expressed as part of a strategic disposal, and the interest that was identified was included in the transfer documents with Canada Lands Company.
Senator Gagné: I know that in Manitoba, there was a property on Lagimodière Boulevard that used to belong to Health Canada. I don’t know if it still does.
Ms. Levesque: Yes. Regarding that specific property, during the circulation process, a number of stakeholders indicated interest, including the province, but sadly, the Franco-Manitoban board wasn’t one of them. They did visit the property later, and according to their assessment, it didn’t meet their needs.
Senator Gagné: But they had to put in the request themselves. I think they only found out through other sources. On February 13, 2017, appearing before the committee for its study on challenges associated with access to French-language schools and French immersion programs in British Columbia, the Honourable Judy Foote, the then Minister of Public Services and Procurement, promised that the department would work together with all partners to find a resolution to the problem of acquiring land to build French-language schools and that it would participate in the ongoing discussions. What solutions have been suggested or implemented since then to address this problem in British Columbia?
Ms. Levesque: Since then, the Treasury Board Secretariat of Canada has issued an update to the 2015 directive to ensure that custodial departments consider the interests of official language minority communities. Also, with regard to our part in the transaction, the board’s interest was identified and was presented in the transfer contract with Canada Lands Company. That interest was identified so that it would be taken into consideration with Canada Lands Company.
[English]
Senator Jaffer: Thank you very much for your presentations.
My question is to you, Mr. Mills. As I said I’m from British Columbia and it will come as no surprise to you that there is a great thirst in British Columbia for French-speaking schools. I’m sure you’re aware of the concerns of École Rose-des-Vents.
Since 2015, the community has been waiting for a new school and the Supreme Court of Canada already ruled on it. I constantly get parents and administration asking me what is happening. It’s four years now and it seems you may have plans but it seems that there have been no plans to give that school back to the community. Can you please set out what is happening so I can report back to my community?
Mr. Mills: I apologize, senator, I didn’t hear which specific example.
Senator Jaffer: In Vancouver. École Rose-des-Vents.
Mr. Mills: Sorry, I don’t have the details on that specific school.
Senator Jaffer: I’m surprised you don’t. For months and months we were talking about it, but it is not your fault. May I please ask that you provide to the clerk what has happened with École Rose-des-Vents? It has been four years since the Supreme Court of Canada ruled that the school should be handed over. I would like to know what steps have been taken in the last few years to resolve the issue and what is the process that has been followed to return the school back to the community. I want as much detail as you can provide, please.
Mr. Mills: I will be happy to follow up and see what information we can provide.
The Chair: I have to admit that I am surprised that you are not aware of this. I’m really surprised. We have been waiting for a long time for an answer on that important issue. I’m surprised you don’t have information to give to us on École Rose-des-Vents at this point.
Senator Jaffer: When Minister Foote was here she assured us, and I trusted her, that she would make sure this would be resolved. Then we went to the Supreme Court of Canada. The community incurred tremendous cost and if Procurement doesn’t know about this, it is very serious. I ask, chair, that we not get a written answer but we ask Procurement to come back and explain it to us so we may have further questions.
[Translation]
Senator Maltais: Welcome to you all. Ms. Levesque, you mentioned the Canadian army buildings in Sainte-Foy.
Ms. Levesque: Yes.
Senator Maltais: How are you planning to handle that file?
Ms. Levesque: For that specific file, Public Services and Procurement Canada is only responsible for circulation to the various priority organizations. The rest of the file, the steps involving the disposal of the property, is the responsibility of the Department of National Defence. So once we’ve received confirmed indications of interest from the priority organizations, that information will be passed on to the Department of National Defence so it can be considered in the department’s strategic disposal plan for the property.
Senator Maltais: I’d like to give a brief history lesson, if I may. This land doesn’t belong to the Government of Canada or to the army. It belongs to the Huron community of Wendake under the Murray treaty of 1763. The Indigenous community claims that land as its own. The Government of Canada never bothered to find out who owned the land before it built those buildings. At the time, nobody cared about Indigenous communities, so the decision was made to use their land. The same thing happened with the Laval hospital, which was the veterans’ hospital after the war.
You really have an ownership problem. Wendake claims ownership of the land, but so do Quebec City, the English school board and the Government of Quebec. But the fact is, it belongs to the Hurons of Wendake alone. As far as we can tell, the Murray treaty of 1763 gives them that land absolutely.
How are you going to untangle all this and figure out the true owner? The Government of Canada isn’t the true owner. You’re about to sell land that doesn’t belong to you. A court could be asked for an injunction at any time, and it would rule that you’re not the true owner of the land. How can you sell land you don’t have title to?
Ms. Levesque: With regard to this property, Public Services and Procurement Canada is only responsible for the circulation process. All the other disposal steps for this property are the responsibility of the Department of National Defence. However, with regard to consultation with Indigenous communities, you’re right. They have indicated an interest in the property, and consultations will be held.
Senator Maltais: They did more than indicate interest. They hold the title to the property. Yet the defence department is asking you to sell it. The property doesn’t belong to the defence department. The only owners on record are the Hurons of Wendake. Shouldn’t you start by negotiating with the Hurons of Wendake? Then the other stakeholders could step in and acquire the property legally. This file has had a mistake in it for four centuries. That’s pretty shocking. This land is located right in downtown Quebec City. Sainte-Foy is a very big suburb. On either side, on legally acquired land, construction is being delayed on two office buildings with sixty or so floors. And those aren’t even located on illegally acquired land. This dynamic isn’t easy to fix. I understand you, and I’m not accusing you of anything. Far from it.
However, I am surprised that before the army handed you this file, it didn’t tell you, “We have the title. Here is the title on record in the land registry. Here is the property, the dimensions of the land. We really do own it.” This situation is like asking your neighbour to sell his house, but he says no, because it’s not your house to sell.
Ms. Levesque: Public Services and Procurement Canada hasn’t been asked to put the property up for sale. In this specific case, we are only responsible for circulating the property to priority organizations as part of the process that has been announced.
Senator Maltais: It will have to be sold to someone eventually, and whoever acquires it will need the title. But the title is far from clear.
Thank you.
The Chair: I’d like to ask a follow-up question, because I want to understand exactly what your role is here. Could you give us more details to help us understand your role in this process?
[English]
Mr. Mills: Perhaps to provide a little more context, there are multiple steps in the disposal process. It will help setting out the steps and then what we would provide as a common service provider. The first step is the custodian, the department or agency that owns the property. In this case it’s National Defence which is the custodian responsible for the property.
The second step would be completion of due diligence, looking at environmental concerns, assuring the titles are in place, looking at legal surveys, seeing if there is any contamination and also doing a market valuation of properties.
The third step would be the determination on whether it’s a routine or strategic property. The fourth step would be a consultation with Indigenous communities to fulfill section 35 Constitution act. Then we get into the fifth step, which is circulation.
All the steps — one, two, three four — have been on the side of National Defence. We have been engaged under a service agreement as a common service provider just to conduct the administrative processes of the circulation. Taking the description of the property and the kind the opportunity with it and making that available to all levels of government at the same time and then taking and collecting the responses from the different levels of government and passing those interests back to the Department of National Defence, who will go to the next steps which will be either a strategic asset, which would be looked at to transfer to the Canada Lands Company, and the last asset would be to move it over. In terms of our role, we are there as a common service provider under a service agreement to do the circulation process.
[Translation]
Senator Moncion: I have a question. The directive changed in 2015. Do you know what precipitated the change?
[English]
Ms. Sultan: Thank you for your question. It’s my understanding that the change in the directive was precipitated — I have here on my timeline that there was a letter sent in 2011, from the Commissioner of Official Languages related to a disposal of a property, specific to a building in Yellowknife, Northwest Territories. In his letter, the Commissioner of Official Languages had requested that the needs of the official languages minority communities would be addressed more directly within the directive on the transfer or sale of surplus federal real property. It was in 2015 that the amendment that we note was made in response to that.
I have the exact wording of what was added: The change was made to provide consideration for minority language communities in the disposal process and the change was as follows: Custodians shall develop a balanced disposal strategy for strategic surplus properties that is supported by a comprehensive assessment of federal and other stakeholder interests.
The Chair: Not too fast please.
Ms. Sultan: I will repeat: That is supported by a comprehensive assessment of federal and other stakeholder interests, including those of official language minority communities, the legal risk analysis and policy and financial considerations.
Senator Moncion: How was it circulated to other departments?
Ms. Sultan: Allow, if I may clarify, how was this change in the directive circulated to the other departments so they were aware — that is the question?
Senator Moncion: Yes.
Ms. Sultan: To be able to factually provide a response, I have to go back and determine exactly what was undertaken but if it followed what would be a generic or general way that this is done, we have a number of ways of communicating changes such as this to the departments. They would include formal notification by email directly to the contact point for each of the custodians or owners of the property. We also post on internal websites such as GCpedia where practitioners in the real property community are aware to check for updates. We can also release policy notices that go to users of the policy that provide them with information on updates of that sort as well as communication at various fora within the real property community. For example, there are Treasury Board of Canada Secretariat committees that bring together real property practitioners. Such a change would also be communicated there.
Senator Moncion: What happens when these directives are not followed? Because, in the case of École Rose-des-Vents, if I am not mistaken, that was exactly what happened. The directive was in place and it wasn’t followed. What happens when someone has a directive, does not know about the directive, the situation occurs and what is the fallout for whoever made the mistake or what are the corrective measures being provided so that somebody is accountable for not knowing these things and having gone forward with the situation we have in the case of École Rose-des-Vents?
Ms. Sultan: Treasury Board of Canada Secretariat monitors compliance with various policy and policy instruments such as directives related to all number of subjects.
As noted, it is the accountability of the deputy head of the specific organization that is required to follow the provisions within the directive or policy. It can be held accountable for not administering those policy pieces.
In terms of this transaction particularly, I would like to commit to getting back to you specifically on what may have occurred.
Senator Moncion: My last point on this, and I will go on the second round, is reparation. How do we fix the problem, now that the problem is there? The situation occurred. What are the measures that are being put in place so that we can correct this problem and make sure that École Rose-des-Vents does get a property where they can build a school?
[Translation]
What I mean is a property that meets their needs. What kind of remedies are there to correct this problem, which has been going on for four years? It’s 2019, and I don’t think that the problem has been fixed yet. What remedies have been put in place to correct this problem once and for all for this particular school, which has suffered from this injustice?
[English]
Ms. Sultan: The Treasury Board of Canada Secretariat is undergoing right now a policy suite renewal where we’re looking at our suite of policies to ensure they meet the current requirements. As part of the policy suite renewal, specifically related to real property, the concerns and interests and needs of various groups are being considered, official language minority communities amongst them.
The need for us to look at again the way the current directive may or may not be addressing the needs is noted. We have been undertaking consultations over an extended period of time to meet with various interest groups and understand whether our policies are meeting government requirements.
We will continue to do so in order to be able to refine our policies to meet the needs.
[Translation]
Senator Moncion: This is my last point. I’m sure some people are making mistakes, but there are no consequences for them, and the ones paying for those mistakes are the people at the other end, who have missed out on an incredible opportunity to secure a prime property that could have met their needs. The lack of remedies is what creates this kind of situation. We need financial remedies to correct this specific problem, which was caused by a major error being made somewhere along the line.
[English]
Senator Smith: There has been a lot of talk, as you are probably well aware, about the importance of potentially developing a francophone university in Ontario. What would the steps be, what would your involvement be and what would the time frame be if, suddenly tomorrow, after an outstanding report from the committee and further deliberation by the Ontario and federal governments, a decision was struck that we want to go ahead and build or create a university? What would be your involvement? What type of process would it be? How long would it take for you to get to the point where you’d have completed your portion of that particular study?
I hope I asked the right question. Would you be involved in this type of situation — scouting out properties and trying to find properties that would be available for this type of initiative?
Mr. Mills: Not within the process of disposal. Again, to go back to the process of disposal, federal departments and agencies that are custodians of properties, as they are going through their programmatic needs, they will determine they have properties that no longer require to meet programming needs. They will declare those surplus. Then they go through the process of disposal, as described earlier.
In our role as the common service provider, or in the case of Public Services and Procurement Canada, which owns large office portfolios, as well as other properties, we would come at it from the following: Do we make sure that the Province of Ontario, in this case, is aware of what disposal properties we’re making for it? We would remind them through that process to consider the opportunities to support official languages minorities and other interests.
It would be through us taking forward our transaction disposals that we would make sure that the province, in this case, would be aware. That would be our role in terms of making sure they are aware of what properties are put forward and press them to consider —
Senator Smith: If tomorrow morning, the minister came to you and said, “We have an agreement between Ontario and the federal government to go ahead with the creation of a francophone university” and gave you two or three location possibilities, would you be charged with going in to look at your assets that exist in those geographic areas and provide a list of those assets to the parties trying to get this deal going? Would that be a role? If so, how long would it take you to do that?
Are you proactive, or are you just a reactionary group?
Mr. Mills: We are a service provider in terms of managing the transactions.
Senator Smith: Is there anything strategic in terms of what you do in terms of looking at your assets and saying, “We’ve heard that the Minister of Official Languages has met with the Premier of Ontario. It looks like they’re going to go ahead with the creation of a Francophone university, but they’ll need a facility. Oops. We control the inventory of facilities and that would be kind of a neat idea for us to look proactively at. When they are ready to pull a plug and go forward, we would be ready to go”?
Mr. Mills: The level of proactivity that would be more typical with what we do would be looking at the overall portfolio of disposals and sit down and ask, “Do any of these kinds of properties fit your needs?” For instance, we have done that in the past with respect to social housing. We’ve looked at the inventory of disposals. We’ve had discussions with partner departments about which properties might be amenable and that kind of thing.
In the case of looking at a French-language university, we would be able to look at what are known surplus properties that are coming down and have that discussion.
Senator Smith: Thank you.
[Translation]
The Chair: Before we move on to the second round, I have a few questions for you too. In a report released by this committee, entitled Horizon 2018, we recommended that the Minister of Public Services and Procurement adopt regulations requiring federal institutions to take into account the interests and needs of official language minority schools in the sale or transfer of real property, by 2018. That was the recommendation we made. Did your department follow up on that recommendation, and if so, how?
Ms. Levesque: Thank you for the question. After the minister’s presentation, we made changes to our administrative procedures to remind priority stakeholders to consider the interests of official language minority communities and to indicate those interests.
The Chair: When was that done?
Ms. Levesque: It happened in July 2017.
The Chair: And our report came out after that? No? Didn’t it? All right, I’m sorry. Go on.
Ms. Levesque: It was in July 2017. As for the application of the disposal process, we hold discussions with the Treasury Board to make sure that all of our disposal processes comply with the directive on the sale or transfer of surplus property.
The Chair: Did your department have discussions with the department and Minister of Tourism, Official Languages and La Francophonie in that regard?
Ms. Levesque: Not that I’m aware of.
Ms. Sultan: Our department?
Ms. Levesque: Yes.
[English]
Ms. Sultan: No, not that I am aware of, either. I’m not aware of any of those conversations that would have occurred.
[Translation]
The Chair: Okay. Thank you for your answers.
Senator Gagné: I have a question about the practical side. Once the province or municipality is asked to indicate the interest of an official language minority community, does the federal government do any follow-up or consultation, or do you just rely on the province or municipality?
Ms. Levesque: There are several steps when interest is indicated.
First, the priority organizations have 30 days to identify their interest. Then they have a further 90 days to confirm the nature and scope of their interest, confirm their financial plan, and assess the property. It’s fairly common for an organization that indicated interest during the first 30 days to withdraw their interest after carrying out an assessment.
Senator Gagné: So you ask the province to do it and leave it in the province’s hands? The federal government doesn’t hold parallel consultations with official language minority communities?
Ms. Levesque: No.
Senator Gagné: Never.
Ms. Levesque: It’s done through the circulation process.
Senator Gagné: With respect to the recommendation, if you haven’t already, I would encourage you to read our report, Horizon 2018, about the challenges associated with access to French-language schools and French immersion programs in British Columbia. This report could apply to many other provinces. I encourage you to read the recommendations, because the issue of disposal of real property was a central topic of discussion, and the situation could be the same in other provinces.
I think that requiring the federal government to hold parallel consultations would provide greater assurance that the needs of official language minority communities are being considered.
I also want to follow up on Senator Moncion’s questions. If the federal government’s directive isn’t being complied with, as happened in British Columbia, isn’t it the federal government’s job to fix that? What is the federal government’s role in that situation?
[English]
Ms. Sultan: As noted, the Treasury Board of Canada Secretariat monitors compliance. It is ultimately up to the deputy head of the specific organization that is accountable for the requirements within the policy, and to adhere to those.
With regard to specifics about a situation or different ways of monitoring or evaluating that we could potentially move forward with, I would not be able to speak to anything aspirational or not formalized at this moment. However, your point is well noted. I will take this question away. If there is more I can provide to you, I will do so.
[Translation]
Senator Gagné: I would appreciate it.
If you don’t hold parallel consultations with official language minority communities, wouldn’t it be good to ask the provinces directly, to ask them whether they consulted the communities? You need to be able to follow up much more proactively, rather than playing a more passive role. I’m not saying you’re playing a passive role, but I sense there’s some difficulty moving this file forward, based on what we’ve heard from the witnesses who’ve testified on this subject.
Ms. Sultan: I completely understand what you’re saying.
[English]
You’re right: Right now, the way the directive is written, there is an expectation that the provinces will work with the various communities and represent their interests. What you are suggesting is a different and potentially more direct way to undertake. It can be considered.
[Translation]
Senator Gagné: Thank you.
The Chair: You mentioned the Horizon 2018 report, which gives me a chance to set the record straight and say that the report was in fact released in 2017, not 2018. My mistake.
I just want to remind you that quite a few people want to speak and that we have a time limit of about five minutes, to ensure that everyone gets a chance to ask questions.
Senator Maltais: I will be very brief. I don’t blame anyone for the situation with École Rose-des-Vents. I’ve been a member for the Standing Committee on Official Languages for six years now. Senator Jaffer, other committee members and I were there. If it were your children? This is Canada. It’s 2019. You would be ashamed to be a parent. It’s outrageous that little two- and three-year-olds are playing on a piece of pavement that size. This is not shameful for British Columbia; it is shameful for all of Canada that young children are being treated like this.
The minister came to testify and she told us that they would fix the problem. The President of the Treasury Board came. The problem is fixed, isn’t it? You’re here today and the problem is still there. Roses won’t pop up out of the pavement at École Rose-des-Vents tomorrow.
That said, I have another question for Mr. Mills with respect to La Citadelle in Quebec City. Quebec City is the only fortified city in North America. Do you have anything to do with it? I think Public Services and Procurement Canada is responsible, isn’t it?
[English]
Mr. Mills: The owner of La Citadelle in Quebec City, where the Governor General’s residence is.
[Translation]
Senator Maltais: The work has begun. I pass La Citadelle in Quebec City twice a day and I see the work.
I am most intrigued by the fact that the stones are being taken from elsewhere and brought onto the site, even though they were originally taken from next to Montmorency Falls, which is at most three kilometres away. The stones are being taken from elsewhere, which drastically increases the costs. I understand that there are geologists, engineers and architects, but the stone was originally taken from two kilometres away, and now it’s being taken from 900 kilometres away. Is there a particular reason for that? Can you explain this or get back to me on this matter?
Everyone in Quebec City is shocked to see these stones arrive by train, when they are there, three kilometres away, and the original citadel was built with these stones, which were transported by horse. Now, they are being transported by horsepower from Massachusetts. That is a bit far from Quebec City. We don’t know why. No one has given us a reason. I asked the Government Representative in the Senate, but he didn’t give me an answer either. The people of Quebec City would like an answer. Thank you.
Mr. Mills: Okay.
Senator Moncion: I would like to get back to what you said earlier, and my question is also addressed to the representatives from Public Services and Procurement Canada. If I understood correctly, you said a few times that you are essentially an intermediary that acts at the time of the transaction and that all of the work is done by a department. You gave the example of the Department of National Defence. There are four stages, and then you get to the negotiation stage for funding, transfer of property, and so on. This is the point at which you become involved in the transaction.
I’d like to make a suggestion. As soon as you become involved in the transaction, wouldn’t it be good to have a provision in the service agreement saying that if a government directive is not followed, the transaction is null and void? The process would then have to start over, because we would have to look at other groups that could be interested before finalizing the transaction. This would only happen when a directive is not followed. It would not be used to cancel a transaction. Service providers would have a mechanism to terminate a transaction to see what was not done properly. I don’t know who you could share this suggestion with or whether you might have any comments on this suggestion.
Ms. Levesque: Thank you for that question. It’s something we can certainly discuss with the Treasury Board, to see whether it could be done in this case and how we could fix some situations.
Senator Moncion: Legally, there could be a sentence in the contract, stating that you would have oversight if the process has not been conducted according to the directives. This would also allow for an error to be corrected before it becomes permanent. This is a suggestion, especially with respect to contract law.
Senator Jaffer: Thank you, Senator Maltais, for your support.
[English]
The situation of French-speaking people in my province —
[Translation]
— is dreadful. It’s unacceptable.
[English]
I’m so glad that my colleagues came to B.C. and saw the state of the schools.
Senator Maltais was saying, it is the sheer love of the French-speaking communities in my province that is keeping the language and culture going. What’s the responsibility of the government when it comes to infrastructure? I know you don’t know. I ask you to find out what is happening. I want to learn, further to what Senator Smith was saying about the French university in Ontario. You may not know, but I know you said you will find out. Would you not have been involved in the beginning, assisting in the infrastructure, or providing the land, or is there no involvement? How does that process work?
Ms. Levesque: I will give, maybe, another specific example. I think there is a fairly well publicized or media situation in Ontario where, through the disposal process, we made the Paul Martin building available.
There was a huge interest by the university. However, for some reason, the funding did not come through for them and, at that point, the city of Windsor put another project forward for a library. As part of the disposal process, as it stands, the municipalities and the province can come forward with those types of public uses in their own realm of responsibility and bring them forward through the circulation process. That was the case in Windsor, Ontario.
Senator Jaffer: Thanks for the clarification. Senator Smith has already asked, but if you can please inquire and see if you were at all involved in helping with the French university in Ontario? That would be helpful.
The Chair: Thank you. I have one more question for you.
[Translation]
My question is a follow-up to Senator Jaffer’s question. Some witnesses suggested that we include mechanisms in the modernization of the Official Languages Act to make it easier for francophone schools in Canada with respect to the disposal of real property assets. What would be the challenges, for Public Services and Procurement Canada or for the Treasury Board of Canada, in implementing such a provision? Is this a realistic way to improve the situation?
[English]
Ms. Sultan: Thank you for the question. It is my understanding that, were such a change to be made to the Official Languages Act, that it would be possible to change the administrative policy, which is the Treasury Board Secretariat policy on the management of real property, to reflect that change. Exactly the way in which that would be operationalized within the policy instruments would need to be determined. But they could be changed to reflect such a change moving forward.
[Translation]
Senator McIntyre: Welcome to the Standing Senate Committee on Official Languages. I’m sorry for being late, but I’ve been on another committee since 11 o’clock this morning. I share the same view as Senator Maltais regarding the École Rose-des-Vents. I would assume that my colleagues have already asked you about the steps your department has taken over the last two years to address this school’s particular situation.
That said, this file has been dragging on for over a decade. I’ve been a member of the Standing Senate Committee on Official Languages for seven years now and the Rose-des-Vents situation just keeps coming up. I understand that negotiations for the purchase of land are still ongoing, but I note that under the Action Plan for Official Languages this is a priority issue, although the plan doesn’t propose concrete solutions to address the situation. Where are we going with this file? This is obviously a policy decision, but could you tell us a bit about any concrete solutions being planned?
[English]
Mr. Mills: Sir, as we mentioned earlier in this respect, I will have to follow up. I don’t have intimate knowledge of the file, what has been happening or what the plan for it is. We will endeavour to go back and get as much information to provide a fulsome update on what has been happening with the file and what the plan is.
Senator McIntyre: So there will be a follow up?
Mr. Mills: There will be a follow up.
Senator McIntyre: You can tell the minister responsible for this file that it is an urgent situation. I thank you for bringing it to the minister’s attention.
[Translation]
Senator Gagné: Thank you, Ms. Sultan, for your commitment to follow up on the file. I’ve also understood that the modernization of the Official Languages Act could put you in a stronger position to support the development and enhance the vitality of our official language minority communities. On the one hand, we will make recommendations on the modernization of the Official Languages Act; on the other hand, as the Chair mentioned earlier, this was part of a recommendation that Public Services and Procurement Canada adopt such a regulation. The directive is quite general and rather broad, but there is a regulation that provides a more effective framework for the actions to be taken to require or force federal institutions to consider the interests and needs of schools in official language minority communities in the sale or transfer of real property or assets. It seems to me that this would be another good solution in terms of reinforcing the positive measures that the government must commit to take towards the communities. Thank you.
The Chair: On behalf of the committee, I would like to thank you for your presentations and for answering our questions. From the questions we have asked and that have in fact emerged from the testimony we heard in committee, I’m sure you have grasped just how important a role the PSPC and Treasury Board of Canada Secretariat play in the modernization of the Official Languages Act. We are therefore aware and very pleased to know that you will inform your superiors of the importance of this legislation and how your organizations can integrate the issues affecting official languages minority communities. I sincerely thank you for that.
We now welcome Fiona Keith, Counsel, and Keith Smith, Acting Director General, Policy and Communications, from the Canadian Human Rights Commission; David Thomas, Chairperson, from the Canadian Human Rights Tribunal; and lastly Marie-France Pelletier, Chief Administrator, from Administrative Tribunals Support Service of Canada. Before giving the floor to our witnesses, I would ask the committee members who were not here at the beginning of our meeting to introduce themselves.
Senator McIntyre: Paul McIntyre, New Brunswick.
The Chair: Welcome. You have the floor, Mr. Smith.
Keith Smith, Acting Director General, Policy and Communications, Canadian Human Rights Commission: Good evening. Thank you, Mr. Chair, for giving the Canadian Human Rights Commission the opportunity to take part in your study on the modernization of the Official Languages Act. Our Chief Commissioner, Marie-Claude Landry, sends her regrets for not being able to be here with you. Joining me today is my colleague Fiona Keith, Senior Counsel and adviser. I’m very pleased to appear with the Canadian Human Rights Tribunal and the Administrative Tribunals Support Service of Canada to further inform this committee on how the federal human rights system works.
[English]
The commission will touch on three points today. The first is that human rights and language rights are similar in nature. Second, under the Canadian Human Rights Act, CHRA, the commission performs a screening function with respect to human rights complaints that is informal, flexible and responsive to Canadians’ needs. This process has been very successful at resolving complaints at an early stage, thereby reducing costs and litigation. Third, there are ways that human rights can be protected that do not rely on individual complaints; notably, proactive compliance.
[Translation]
Much like language rights under the Official Languages Act, human rights are quasi-constitutional in nature. That means that the tribunals and courts must interpret these rights in a broad and purposive manner so as to ensure substantive equality. I will now explain the two-part complaints system under the Canadian Human Rights Act.
The Canadian Human Rights Commission is Canada’s human rights institution that protects the core principle of equal opportunity and promotes a vision of an inclusive society free from discrimination.
[English]
The commission receives discrimination complaints and works with both the complainant and the respondent to resolve issues. The commission takes a people-first approach and continues to work toward creating the most effective complaints process possible. Last year, 25,000 people contacted the commission by phone and online because they felt they had been treated unfairly. In most cases, the commission helps these people resolve their issues quickly and informally, or helps them find the appropriate process to resolve their issue.
The commission’s work, both formally and informally, greatly reduces the number of people who have to go the tribunal to have their complaint heard.
In 2018, for example, the commission accepted over 1,100 complaints. A focus on early resolution or mediation means that many of these are resolved relatively quickly and at an early stage. Last year, 65 per cent of mediated complaints reached a settlement.
That brings me to the second part of the process. When a complaint cannot be settled, or when the commission determines that further examination is warranted, it may then refer the complaint to the Canadian Human Rights Tribunal. Chairperson Thomas will speak about how the tribunal does its work. Between 5 and 10 per cent of the complaints the commission accepts are referred to tribunal. In 2018, the commission referred 80 complaints to the tribunal. That’s compared with a five-year average of about 59 complaints.
The complaints that go to the tribunal are often complex and systemic in nature. Some of these complaints can take longer to deal with, as Chairperson Thomas will explain.
[Translation]
In conclusion and as my third point, I would submit that there are other approaches to protecting human rights, particularly through proactive compliance. Enforcing the rights protected by the CHRA depends on complaints filed by individuals or groups. More recent legislation is based on a proactive approach to protecting people’s rights. This approach shifts the burden off individuals.
[English]
For instance, the commission also works with federally regulated employers to ensure proactive compliance with the Employment Equity Act. The commission will soon assume new responsibilities under the Pay Equity Act and, if passed, the Accessible Canada Act.
As a final point, while the nature of the protections may differ under each of these acts, together they are intended to ensure that everyone in Canada is treated fairly, no matter who they are.
[Translation]
We appreciate the work your committee is doing to ensure that possible amendments to the Official Languages Act will strengthen the protection of language rights in Canada.
Thank you for your attention. We will be happy to answer your questions.
The Chair: Thank you, Mr. Smith. Mr. Thomas?
David L. Thomas, Chairperson, Canadian Human Rights Tribunal: Good evening, everyone. Thank you, honourable senators, for inviting me to appear before your committee today as you consider the Human Rights Tribunal model to better understand the functions of administrative tribunals within the federal jurisdiction. To provide some context, I would like to start by describing our mandate before I delve into how we do what we do.
The Canadian Human Rights Tribunal is an independent, quasi-judicial body that is similar to a court of law but is a little less formal. It hears complaints of discrimination filed against federally regulated employers and service providers. The tribunal conducts inquiries into complaints of discrimination that have been referred to it by the Canadian Human Rights Commission.
[English]
The tribunal determines whether the allegation in the complaint is substantiated, being based on one of the 13 prohibited grounds of discrimination listed in the Canadian Human Rights Act. As my commission colleague has explained, under the gatekeeper model, the commission fulfills a screening function. It is mandated to dismiss complaints for a variety of reasons, refer them to other bodies or attempt to resolve them. As a result, only a small subset of complaints filed with the commission — roughly 8 per cent — are ultimately referred to the tribunal for inquiry.
In deciding whether to request a tribunal inquiry, the commission has considerable discretion. It may do so whenever it is “satisfied that, having regard to all the circumstances of the complaint, an inquiry is warranted.” Our members hear cases and decide whether the allegations of discrimination have been substantiated, based on the testimony and evidence presented at the hearing and the legal arguments made. Where a complaint is substantiated, the tribunal can issue a remedial order, fulfilling both compensatory and public interest objectives.
[Translation]
Parties to the tribunal inquiry may challenge the tribunal’s decision by seeking judicial review before the Federal Court, whose decisions are appealable to the Federal Court of Appeal and, with leave, to the Supreme Court of Canada. These courts may uphold or set aside the tribunal’s decision or refer it back to the tribunal for redetermination. If the decision is upheld, the case is closed.
I would now like to share with the committee my personal observations about the realities of the current scheme. Much like the Canadian Human Rights Tribunal, administrative tribunals were created to provide access to justice that is expedient, timely, accessible and administered by subject experts. The commission receives around 1,000 complaints per year, and 8 per cent of those are referred to us for an inquiry. We have nearly 300 active cases at any given time in our roster. The majority of incoming cases are referred to mediation, and over 60 per cent of those mediated complaints result in a settlement.
As for the cases that go on to a hearing, where at least one of the parties declined mediation or the mediation did not result in a settlement, the delays can be lengthy.
[English]
There are several reasons why they can take so long. In human rights cases, the stakes are very high. Second, anti-discrimination law is complex. Third, we are now handling more complaints that deal with unique and complex subject areas. Fourth, our adjudications often involve self-represented parties.
The tribunal’s quasi-judicial hearings have much the same structure as a formal trial before a court: The parties before the tribunal lead evidence, call and cross-examine witnesses and make submissions on how the law should be applied to the facts. As a primarily adjudicative body with court-like powers and procedures, the members of our tribunal must respect the principles of natural justice so as to ensure that each party is given full and ample opportunity to be heard. At the same time, we must ensure we do not raise a reasonable apprehension of bias in our decision-making.
This concludes my opening marks. I will be happy to take questions.
[Translation]
Marie-France Pelletier, Chief Administrator, Administrative Tribunals Support Service of Canada: Thank you, honourable senators, for giving me the opportunity to appear before you as part of the study on the modernization of the Official Languages Act. I would like to begin by briefly describing the role and mandate of the Administrative Tribunals Support Service of Canada, the ATSSC, which was established on November 1, 2014. the ATSSC is responsible for providing support services and facilities to 11 federal administrative tribunals, including the Canadian Human Rights Tribunal, by way of a single integrated organization. The tribunals supported by the ATSSC represent a portion of the 30 federal administrative tribunals. These are generally small organizations that vary in size from approximately three to 100 full-time and part-time tribunal members. Their mandates are varied, spanning a vast array of specialization, from commerce and international trade to the administration of monetary penalties, to human rights and Indigenous rights, social programs, labour relations, the protection of public servants who are whistleblowers and the protection of cultural assets.
[English]
The tribunals are listed in the annex to the ATSSC Act. The ATSSC reports to Parliament through the Minister of Justice and the Attorney General, but it operates at arms’ length from the Department of Justice.
The support services we provide to the tribunals we serve are divided into two main categories: specialized services in each tribunal’s field of expertise and centralized back-office internal services common to all tribunals.
The specialized services are offered by expert staff who work in secretariats dedicated to each tribunal. As such, these employees work directly with tribunal members to assist them in the accomplishment of their mandate.
The specialized staff work in registry services, legal services, research and analysis, linguistic services and other mandated or case-specific activities such as mediation or investigations.
[Translation]
The centralized internal services we provide include human resources, financial services, information management and technology, accommodations, security, planning and communications. By providing these various types of services, the ATSSC supports the tribunals in exercising their individual powers and performing their unique duties and functions in accordance with their respective legislation, rules and regulations. It is important to note that, in offering these services, the ATSSC and its employees do not have any the powers that are conferred by lawon any of the administrative tribunals or their members. Our role is that of a service provider and a facilitator for the tribunals to be able to deliver their mandates. Our role is also to ensure full accountability in the expenditure of public funds and in the adherence to legislation and policies that direct the management of public sector institutions.
[English]
In our role as a service provider, we work collaboratively and extensively with the tribunals to identify their needs and priorities, as well as continuous improvements to systems, services and processes.
We are committed to ensuring that appropriate resources are available to support the tribunals’ operational processes and caseload management, within the confines of the funding allocated for that purpose.
To this end, the ATSSC is expected to have a budget of $92.1 million in 2019-20. Our workforce consists of over 575 employees. Approximately 75 per cent of them are co-located with the tribunals and work directly with them to offer specialized expert services and approximately 25 per cent of our employees work in the back-office functions. Together we support up to 200 Governor-in-Council appointees who are members of the 11 administrative tribunals.
[Translation]
On November 1, 2019, the ATSSC will be marking its five-year anniversary. Over the course of the coming years, we will continue our work of the past five years, namely championing a culture of service excellence, innovation and continuous improvement in the services that we offer to the tribunals we serve.
Mr. Chair, this concludes my remarks. I would be pleased to answer the committee’s questions.
The Chair: Thank you, Ms. Pelletier.
We will now move on to a discussion period with senators. I would remind the witnesses and my colleagues that we have given ourselves a small directive. Each senator has five minutes to ask questions and receive responses. As you represent three institutions that are very important to us, we hope that you will be very concise in both your questions and your answers.
Senator Maltais: I will certainly abide and be very brief.
First, I would like to welcome you, ladies and gentlemen. We don’t often meet people like you. You rarely appear before committees, probably because you are not invited, but you should certainly be invited more often. You are the guardians of rights and equality in Canada.
Is it necessary to file a complaint before a particular person, company or group can access your services? Do you need a formal written complaint before you can work for them?
Fiona Keith, Senior Counsel, Canadian Human Rights Commission: Thank you for your question.
[English]
The commission does a lot of work at what we call the front door. My colleague Keith told you about the numbers of people who call us every year and many of those people spend time speaking with an intake officer or a complaints analyst, who does not take a complaint but, in fact, directs them to a better place to resolve their issues or concerns.
A lot of commission resources are taken up with those kinds of calls and then they don’t have to go to a tribunal. The commission also, as Canada’s national human rights institution, has a mandate to promote and protect human rights. This is described in section 27 of the Canadian Human Rights Act. It’s a very broadly based mandate. It is through that mandate that the commission works directly with non-governmental organizations, employers, unions and other organizations across Canada to protect and promote human rights.
[Translation]
Senator Maltais: Ms. Keith, Mr. Smith, Mr. Thomas or Ms. Pelletier, if I asked you to look into the situation of the École Rose-des-Vents in Vancouver, in my capacity as a senator and member of the Standing Senate Committee on Official Languages, and to conduct an inquiry on the rights of these persons, would you be able to do it?
[English]
Ms. Keith: The commission does not have jurisdiction to accept complaints based on language. If someone comes to us and their complaint is related to their ethnicity, or national or ethnic origin as a French Canadian or as an English-speaking Canadian then we might take those kinds of complaints. There have been a number of examples. In general we don’t have jurisdiction to deal with language rights.
[Translation]
Senator Maltais: In your response, you left out French-speaking Canadians. You talked about English-speaking Canadians and allophones, but not about French speakers.
[English]
Ms. Keith: I believe I mentioned French Canadian. For example, if someone was on a job site and felt that they were being harassed —
[Translation]
Senator Maltais: I will stop you right there. I apologize, but that’s not what I’m asking you. I am asking you whether you can conduct an inquiry — there are four of you here, and you are the chairperson — and look into what is going on with the École Rose-des-Vents French school board and how three-year-old children are being treated in an ostensibly democratic country that supposedly defends equal rights. That is what I’m asking you. Would you be able to do it or not?
Mr. Thomas: I don’t know all the facts, but at this time, we don’t have that jurisdiction under our mandate. If the government wants to change our mandate, that’s another thing altogether. Official language rights are quite different from human rights.
Senator Maltais: I know you well and I can see where you’re going. If the committee asked for an inquiry into what is going on there, would you do it?
Mr. Thomas: At this time, I do not believe it would be possible under the law as it is currently worded.
Senator Gagné: Thank you for your presentations. We have been listening to the testimony of many young people, community members and others for more than a year. The need for an administrative tribunal has been put forward, discussed and debated. The reason for discussing this matter was to relieve the Commissioner of Official Languages of his dual mandate of promoting linguistic rights and also policing them.
When the Commissioner of Official Languages appeared before us, he proposed that we use the Canadian Human Rights Tribunal as a model on condition that it be efficient and that it focus on making decisions about important points of contention. If the federal government decides to draw inspiration from this tribunal when it modernizes the act, what best practices should be retained and what elements will have to be modified to ensure that it is efficient?
Mr. Thomas: The priority would be to be clear in our legislation, because it is important for the parties before the tribunal and for the tribunal itself to have a good understanding of its mandate and its powers. I believe that I can be more specific if I may continue in English.
[English]
I think it’s very important if Parliament wants to go this way to make a very clear mandate for the tribunal and to make the scope of what its powers are very clear in the legislation, not to be in a vague manner.
It is also important that if there is a screening body — if the commissioner, for example, will screen, then there has to be a very defined role on how they will participate further, even if they will.
It is very important that if you have a tribunal, that tribunal must be at arm’s length, and it must be an impartial body that weighs the evidence that it is going to hear from both parties who are affected by the preliminary decision of the commissioner.
There are two ways you can do that. You can also have a tribunal, which is the primary determiner of facts, who finds the facts themselves and hears evidence from the parties. Or you could have a different model, which has been proposed now under Bill C-81, the “Accessible Canada Act,” and Bill C-86, the “Pay Equity Act,” where the commission will make decisions and the tribunal will be in an appellate role, where it will hear appeals of those decisions made at the commissioner level.
There are sort of two models that the Official Languages Commissioner could look at, one where a tribunal looks at the facts de novo in the first instance, or here is an appeal of a decision made by the commissioner. The commissioner would then have to determine whether they participate, as our commission participates in front of us, in our tribunal, in the public interest.
[Translation]
Senator Gagné: I have a supplementary question. How much of an advantage is it to have a commission that can study a complaint in advance and act as a complainant when warranted?
[English]
Mr. Smith: We have a lot of experience as a screening body. It serves an important education function with complainants. I told you that 25,000 people contact the commission, well, that boils down to about 1,100 complaints after we have engaged, referred, talked to, talked people through. Also, the processes could be flexible and informal. We do a lot of mediation. Before things get to a de novo case at the tribunal, we have done a lot of the work to educate and guide people through the process. I see a real advantage in doing that.
If you don’t mind, my colleague was going to add something about the advantage.
Ms. Keith: If I could add something about what could be different in the case of language I would say that, as my colleague Mr. Smith said, language rights and human rights enjoy a lot of the same aspects from a legal perspective.
When you come to adjudicating them, there may be differences. In the case of human rights, there is often significant questions of credibility that require viva voce or oral evidence to be heard. That can be factor explaining the length in hearing time.
Right now, language rights are adjudicated by the federal court through summary proceedings where written affidavits are filed and only, as I understand it, in rare incidents are people called to give oral testimony.
In any possible future legislation, giving an administrative tribunal mandate over language rights, that flexibility in approaches to a hearing would be important.
Senator Gagné: Thank you.
[Translation]
Senator McIntyre: Thank you for your presentations. I note that any decision by the commission or the tribunal could be subject to judicial review before the Federal Court.
How many decisions undergo a judicial review before the Federal Court?
Mr. Thomas: Not many.
[English]
Each year we really don’t finish that many final decisions. As I said before, most of the referrals we have are settled via mediation that we conduct or the parties sometimes settle directly.
In terms of final decisions rendered in a given year, it may only be, in our case, ten or a dozen cases. I would say it varies, but I would say probably not more than one or two of those would be judicially reviewed. I don’t have the exact statistics; I could get that for you if you would like me to follow up.
Ms. Keith: Thank you for your question. There is an aspect of judicial review in the human rights system that is different than in the current system for the protection of language rights, and that is the decisions of the Canadian Human Rights Commission, the screening decisions that Mr. Smith has described to you, those can also be subject to judicial review whereas my understanding is that the decisions of the language commissioner are not subject to judicial review.
[Translation]
Senator McIntyre: I note that the commission and the Canadian Human Rights Tribunal were created under the Canadian Human Rights Act.
The Administrative Tribunals Support Service of Canada was created by the Administrative Tribunals Support Service of Canada Act. It is my understanding that it provides services to 11 federal administrative tribunals, including the Canadian Human Rights Tribunal.
That said, what are the challenges you face when implementing the Official Languages Act? My question is for the three representatives.
Ms. Pelletier: Do you mean as a federal institution?
Senator McIntyre: Yes.
Ms. Pelletier: In our case, if we are talking about complaints we received or that we have worked on with the commissioner’s office, there have not been many, and they are fairly recent.
I will not go into the details because some are still under review. However, I can give you an idea of their nature. We received one complaint, which has been resolved, concerning the publication of court decisions released in both official languages simultaneously.
We then received two complaints about linguistic profiles on certain postings for vacant positions. We also received two complaints about some information in both official languages that was not of the same quality. One complaint was about information on the website of one of the courts, and the other was about the display language on telephones. That is the nature of the complaints we received.
Everyone is familiar with the provisions of the Official Languages Act, everyone is familiar with their obligations under the law as a federal institution. We fulfill these obligations every day. Therefore, I cannot say that it is a particular challenge. It is simply part of the work environment.
Senator McIntyre: I note that Parts I to IV of the Official Languages Act take precedence over all other federal laws, with the exception of the Canadian Human Rights Act.
Could you comment on that?
[English]
Ms. Keith: My understanding is that the parts following Part 4 are not quasi-constitutional in nature. This means that the duties imposed on organizations by the Official Languages Act are not quasi-constitutional in nature.
It is not an area that I practise in. I would not offer any further comment except to say that under the Canadian Human Rights Act, the entire legislation is treated as quasi-constitutional in nature.
Senator Jaffer: Thank you all for being here. It has been very interesting. I have learned a lot. After visiting the website of the Canadian Human Rights Commission, I see you have received many complaints regarding hate crimes and discrimination complaints related to race, colour, national or ethnic origin and religion but none — because language is not covered. I guess that goes to Federal Court. We are looking at new ways of suggesting — new modernization ways. I’m wondering, is this something that we should be looking at? Is this something we should be recommending, that language be added to the complaints you receive? I know at the moment it goes to the Federal Court. I get that. We all know that Federal Court is much more expensive. I appreciated the way you explained the process that people come, they complain and it is resolved. Out of 20,000, it comes to 1,000. Do you think that one of the things — and you may not be able to comment — maybe what you can comment on is something that we should be looking at, to add language to the definition?
Mr. Smith: That’s a fantastic question. Just before we came in here we were saying, “How are we going to talk about the issue of whether language is a human right or not?” I am an old human rights hack, and I would argue, yes, indeed, it falls under the International Covenant on Economic, Social and Cultural Rights. It is in the Charter. There is room for that debate. I guess it would, at the end of the day, be a political decision about how to proceed in that regard. Great question.
Senator Jaffer: Of course, I respect that. I respect that you cannot say anything further. I don’t want to put you in a difficult position.
Mr. Thomas, I have a question for you. We have been studying how to modernize the bill. One of the things we’ve been looking at is to recommend — or we have not discussed recommendations and that’s within the committee, but to have Supreme Court justices know both languages. I was wondering how bilingual is the tribunal? Because we all know that nuances of the language are so important. I was wondering if you were able to tell us how bilingual the tribunal is?
Mr. Thomas: I would be pleased to do that.
Senator Jaffer: I know you will say language is not an issue but that doesn’t mean anything if somebody could be discriminated against for hate if they were of a French-speaking background. That’s not a language issue. That’s another issue.
Mr. Thomas: Let me share some statistics. First of all, we currently have 272 active cases before the tribunal. Of that 272, there are 9 French language cases. That’s about 3 per cent. I don’t know why it is so low but that’s our current statistic. We have three francophone members: one full-time, two part-time; two based in Quebec, the part-time members. We have a new vice-chair who is coming to join us very soon who is fluently bilingual and has handled adjudications and mediations in both official languages. Myself, I am from Vancouver as well. My French testing level is a C-B-C.
I myself believe, as you said, there are often subtle nuances that come across in an adjudication. I myself don’t feel comfortable to do an adjudication in my second official language. Given the caseload that we have in French and the capacity we have at the tribunal, we certainly have no problem meeting any of those needs. I think virtually everybody who works at the tribunal is bilingual.
Senator Jaffer: And if I may push you a bit, are you looking at making your organization or creating an organization that is more bilingual; is that the aim? By having your vice-chair come on board, obviously the government has decided that —
Mr. Thomas: That’s right. That was a priority for us in the search that we did for a new vice-chair for the tribunal. We were looking for somebody with that extra capacity. And even, I would say part of the Canadian Human Rights Act provides for the appointment of part-time members who are geographically dispersed across the country. That has several advantages for the tribunal, having those part-time members located in different jurisdictions. During the new open and transparent recruiting process for GICs that the government has implemented, we did, in fact, ask all the people whom we interviewed if they would answer at least one question in their second official language just to sort of gauge people’s abilities. But, of course, it is a big country, and those abilities in both official languages vary from region to region.
Senator Jaffer: May I go back to Ms. Keith and Mr. Smith. I forgot to ask you one question. Is there a circumstance where you get a language question — for example, somebody from Quebec with an English-language issue — do you ever have that? And do you refer them to Federal Court? Do you ever come across that situation?
Ms. Keith: We do get callers. I don’t have the numbers. But a number of callers who contact us and we refer them to the Office of the Commissioner of Official Languages.
Senator Jaffer: Thank you.
[Translation]
Senator Moncion: My questions focus more on the creation of a tribunal. How long has your tribunal been in place?
Mr. Thomas: It has been in place for 41 years. Up until 1998, we were separate from the commission because of the Court of Appeal ruling in the Bell Canada case.
[English]
We received a direction from the Federal Court of Appeal in this big case that the tribunal should be a separate and independent arm’s-length institution from the Human Rights Commission. For the first 20 years or so under the Canadian Human Rights Act, the tribunal was kind of a division of the commission. I was not around in those days so correct me if I exaggerate. I think initially there was, in fact, a very large roster of people who were potential adjudicators and not many of them were lawyers. In fact, I would say that’s one of the shortcomings of the act as it still exists today, is that not every adjudicator or every member of the tribunal is required to be a lawyer, although in practice virtually all of them in the last 20 years have been lawyers.
I think what the Court of Appeal found was the investigative body, the commission, should not be again the same body that then decides which members are going to form the panel that then hear that complaint, that that should be a separate decision made by an independent arm’s-length tribunal. In fact, that’s the way it works now, is that every complaint that is referred by the commission comes to my desk as the chairperson. Then I allocate that case, that inquiry, to the members on my tribunal. It has nothing to do with anything at the commission. In terms of if there is an idea to create a tribunal for official languages, I think it would be very important to make it a separate arm’s-length institution that is very impartial and there is no apprehension of bias that could arise from how that functions. Again, as I said in an earlier answer, it very much depends on the clarity of the legislation that is drafted to create that institution. I think that is very important.
Senator Moncion: Thank you. You have answered a lot of other questions that I had. One of the comments that was provided over and over again when we were meeting with witnesses, it was the creation of some kind of a tribunal where some of the issues would be heard and decided. I know that Senator Jaffer mentioned or talked about maybe human rights, looking at a languages situation. I know you are not necessarily very comfortable with it, because it’s a different part of law. I am just looking to see from a tax or cost perspective how efficient would you be in doing this work when we are looking at complaints coming from official languages?
Mr. Thomas: I think it depends.
I would ask you a question because I looked at some of the transcripts from previous discussions that you had on this subject. I was trying to get a sense of what really would be the nature of the complaints. Are they reviews of administrative monetary penalties that have been issued to parties for infractions or are these broader questions of interpretation of the legislation? Is it an application of various facts to the law itself?
If we understand the nature of the complaints, first of all, then it maybe becomes a little easier to then think of the ideal model for a tribunal to handle that. I think of just one other federal tribunal of which I am aware. There is an Environmental Review Tribunal that simply looks at those administrative monetary penalties that have been issued by the Ministry of the Environment and determining if they are reasonable under the circumstances. They have a narrow mandate for a narrow question.
The Human Rights Tribunal has a broad mandate. As I said in the opening remarks, the complaints that come before us are often complex. The facts are very difficult to determine. Sometimes we are looking at very subtle hints of discrimination that are difficult to get at, and so, as Mr. Smith said, we need to have that oral testimony sometimes to assess the credibility of the parties.
It’s sort of a whole different thing. I’m not familiar enough with the nature of the kinds of complaints that would arise under the Official Languages Act to determine whether a tribunal like ours or a separate one would be appropriate.
As I said at the outset, the advantage of an administrative tribunal is that you have subject-matter experts. For the tribunal to take a complaint, we would have to become subject-matter experts on official languages. Right now we’re limited to discrimination. It is not to say it’s impossible but it would be, again, a new broadening of our mandate.
Senator Moncion: The way you work right now could be emulated into a tribunal for official languages where we would probably — well, you never know — not need as many people. I think you are a large organization now, but it’s just a place where your model could be emulated.
[Translation]
The Chair: Before we move on to round two, I have a few questions for you.
We are very pleased that you are appearing before our committee. The witnesses led us to reflect on two questions. First, how are the obligations of the Official Languages Act met and how is the act lived within our institutions? Second, do you face challenges with your obligations under the Official Languages Act?
We repeatedly heard that your model could be useful for the Official Languages Act, particularly with respect to this cohabitation or the role that the Commissioner of Official Languages must have with respect to promotion and sanctions. You are painting a realistic picture of your situation. Everything seems to be working.
What are the obstacles that you must overcome as an institution to meet your official languages obligations, and what challenges are there regarding the cohabitation of the Human Rights Commission and the Canadian Human Rights Tribunal? This would shed light on the best possible structure for a future tribunal within or outside of the Commission.
[English]
Mr. Smith: I will respond and then my colleague will follow. With respect to the OLA and any challenges we might have in meeting it; that’s your question, correct?
The Chair: Yes, please.
Mr. Smith: I’m not aware of any profound challenges we have in respect of meeting the Official Languages Act within the commission itself. While we are arm’s length from government, we still fall under Treasury Board. We still have a number of obligations that we have to implement and we take those very seriously. We are cognizant of the fact that we serve a large percentage of Canada’s population as francophone and respect our obligation to provide services in both official languages.
It’s not so much of a struggle that I’ve seen. The commissioners are order-in-council appointments. We have run into situations where we don’t have enough francophones or enough commissioners for that matter. That’s a challenge on occasion. Generally we do a pretty good job of meeting our obligations with respect to the OLA.
Ms. Keith: Was there also a second question with respect to challenges we have in fulfilling our mandate under the Canadian Human Rights Act? Did I misunderstand the question?
The Chair: No, it was mainly under the Official Languages Act and the relation between the commission and the tribunal, if you have any challenges?
Ms. Keith: Challenges in our relationship with the tribunal?
The Chair: Yes, how it works, because we’re trying to find the right model with the Official Languages Act. What would you suggest, for example, if you would have to suggest something for us that we can bring back to the commissioner or to the modernization of the act?
Ms. Keith: There is one aspect of the two-part system that is largely hidden. The commission does a lot of work on complaints. Where it does not resolve them or doesn’t assist the parties in reaching a mediated settlement, we do a lot of fact-gathering and we prepare reports for decision. I noticed in the jurisprudence that the Official Languages Commissioner also does so and his or her reports, although they don’t bind the Federal Court, are filed with the Federal Court.
That’s not the case with the reports of the Canadian Human Rights Commission. They are not presented in any way to the tribunal, although, of course, they are available to the parties and are of assistance to the parties in terms of preparing for a hearing. That would be one aspect I would flag, whether there is any possible way to capture the work that’s being done and have it flow through in some way, lending greater efficiency.
Mr. Thomas: I think it is a good point, Fiona. It’s the duplication of effort and that’s one of the things that we often hear at the tribunal. When the parties come before us and we ask them to provide copies of all the relevant documents, quite often they will say, “We gave that to you guys already.” We have to say that you didn’t give it to us, you gave it to the commission and they say, “Why do we have to do it again? Why can’t you just get it from the commission?”
That has been a frustrating thing for parties before us. In principle it is a de novo hearing. We are not burdened with the history or any information that may have come out or things that may have come out at a mediation session prior to the involvement of the tribunal. We would hear everything fresh. But it is frustrating and it is adding time to the process for the parties. I think if you have the opportunity to design something freshly for the Official Languages Act, it would be a good idea to keep those things in mind, look at the process that you want, what are the types of decisions you want to have resolved, and design a process that can do that efficiently and quickly with official language experts in that area of the law.
I think that’s your real objective in designing a new system.
[Translation]
The Chair: Do you have another supplementary question, Senator Gagné?
Senator Gagné: Yes. Would you be inclined to keep the Office of the Commissioner of Official Languages, which promotes the official languages, and that it also have the power to apply sanctions? Is there a contradiction in that? Could both functions be included with this system?
Mr. Thomas: I think the answer is yes if there is a right of appeal. In my view, that is the most important thing. If there is an objection to the commissioner’s decision, you should have the opportunity —
[English]
— to make your case to an impartial body. That’s the important thing.
As I said earlier, the primary thing I would consider is whether you want the tribunal to be an appeal body of a decision the commissioner has already made or to hear the evidence new.
Mr. Smith: There is an incredibly important promotion element to the work the commission does. The protection side is what we call the complaint side. The promotion side is promoting human rights in Canada. There is an incredibly important element to that promotion side of the Commissioner of Official Languages.
I think you will have to decide exactly what role and mandate you want the Commissioner of Official Languages to have. It could be similar to the commission, where he or she screens complaints and then refers them. If there is a more proactive element, that’s a different ball of wax that you would have to consider in terms of which is better.
[Translation]
The Chair: Time is running out. To close out the meeting I will nevertheless give the floor to Senator Maltais, who has a quick question.
Senator Maltais: I have a hypothetical question. Many English-speaking witnesses from Quebec told us that provincial courts did not immediately release the rulings in English at the same time, whereas this is done automatically by the Superior Court and the Court of Appeal. Is this an issue that could be brought to you by anglophone communities?
Mr. Thomas: Perhaps Ms. Pelletier can answer the question better than I can. Our tribunal’s decisions are very legal documents that are nuanced. We have seen that it is difficult for the Translation Bureau to do a perfect job the first time. From time to time, the members have to correct the translation themselves and this exercise takes a lot of time. At the same time, the parties before us want to see the decision as quickly as possible. I don’t know why, but we sometimes have to wait a long time for the translation.
Ms. Pelletier: I cannot speak for all courts and not even for our tribunals, but, in our experience, it is a standard practice for most of the courts that we deal with to publish rulings in both languages simultaneously. However, they will sometimes communicate the decision to the parties in their language, and then when the time comes to publish the decision, it is released in both official languages. That does not happen everywhere, but that is what happens in the majority of cases at the courts with which we work. In our case, the question is moot.
The Chair: Ms. Keith, Mr. Smith, Mr. Thomas and Ms. Pelletier, thank you for your presentations, which were very enlightening and will help us move forward with our work.
(The committee continued in camera.)