Government response to the report of the Standing Senate Committee on Official Languages:
Air Canada’s Obligations under the Official Languages Act: Towards Substantive Equality (March 2012)
The Honourable Maria Chaput
Standing Senate Committee on Official Languages
Senate of Canada
Ottawa, Ontario K1A 0A4
Dear Madame Chair:
Pursuant to section 131 of the Rules of the Senate, and on behalf of the Government of Canada, I am pleased to provide the Government Response to the Third Report of the Standing Senate Committee on Official Languages tabled in March 2012 entitled Air Canada’s Obligations under the Official Languages Act: Towards Substantive Equality .
The Government of Canada has adopted a fair and responsible approach to official languages, which guarantees Canadians’ access to quality bilingual government services in accordance with the Canadian Charter of Rights and Freedoms (the Charter), the Official Languages Act (the OLA) and the Official Languages (Communications with and Services to the Public) Regulations (the Regulations).
Since Air Canada’s privatization in 1988, the Government has clearly stated its intention to maintain the carrier’s official languages obligations. Air Canada is the only Canadian airline subject to the OLA. Its linguistic obligations were reiterated in section 10 of the Air Canada Public Participation Act, which was enacted on August 1988 and led to its privatization, and the carrier was deemed a “federal institution” within the meaning of the OLA.
It is in this context that our Government tabled Bill C-17, An Act to Amend the Air Canada Public Participation Act, on October 17, 2011, as a means of making all airlines carrying passengers or goods under contract with Air Canada at any given time subject to the OLA, and more specifically to Part IV (Communications with and Services to the Public), Part IX (Commissioner of Official Languages) and Part X (Court Remedy). Bill C-17 would continue to protect the language rights of Canadians while ensuring that airlines are directly responsible for official languages obligations in terms of providing air services to the public under contract with Air Canada. The Government does not, however, plan to impose new language-of-work obligations on air carriers transporting passengers or goods under contract with Air Canada. Through Bill C-17, the Government is also choosing not to increase the number of routes currently designated bilingual under the Regulations. Such obligations would impose undue costs on carriers and would significantly affect their competitiveness.
The industry context in which Canada’s carriers operate, including Air Canada and its partner airlines, is one of high operating costs (notably for fuel), narrow profit margins, strong competition and a constantly changing economic context. In addition, Canadians regularly express their concerns about the costs of airline tickets and this issue was recently addressed in a report from the Standing Senate Committee on Transport and Communications. For these reasons, the Government believes that Bill C-17 is a balanced approach between the linguistic obligations of the carrier and its partners, the protection of the language rights of passengers and the conditions ensuring the viability of Air Canada. This initiative once again confirms the Government’s commitment to linguistic duality reiterated in the Economic Action Plan 2012, and demonstrated in the recent national consultations held by the Minister of Canadian Heritage and Official Languages in order to develop a new strategy for official languages.
The Senate Committee recommended that the Treasury Board Secretariat (TBS) amend the Regulations. However, this legislative instrument contains the rules that reflect the application of the principles of “significant demand” and “nature of the office” that are entrenched in the Charter and reiterated in the OLA. The Government must comply with both the letter and, importantly, the spirit of the legislation. Amending the Regulations as the Senate Committee proposes would represent a major change in the application of one or the other of these fundamental principles and would result in Air Canada being treated differently than other institutions subject to the OLA. Such a change might lead to an increase in the cost of air travel for the travelling public, and might also negatively affect Air Canada’s competitiveness in an already highly competitive market and might undermine its efforts at long-term profitability.
As for the recommendation of the Senate Committee to develop a policy to protect the language rights of Air Canada employees in the case of transfers imposed by the Corporation, it must first be pointed out that the Language of Work Implementation Principle, adopted in 2005, is still in force and continues to apply to all federal institutions (including Air Canada) in the event of a head office move. However, this principle is an exceptional instrument to temporarily protect employee rights that would otherwise be lost if the OLA was applied. This type of principle must remain an exceptional measure for equally exceptional situations. In this regard, the Government must adopt policy instruments that are in keeping with the letter and the spirit of the OLA and treat unique situations on a case by case basis. In this instance, adopting a new instrument dealing with the transfer of employees would amount to an extension of employee language-of-work rights that goes beyond the mechanisms provided for by Parliament, would significantly limit the flexibility of federal institutions to manage their human resources and would undermine the efforts of such institutions to ensure sound management of public finances.
The Government has noted the four recommendations to Air Canada but cannot respond directly to them since they do not fall within its control. As provided in the OLA, all federal institutions, including former Crown corporations like Air Canada, are responsible for its implementation within their respective organizations. Our government recognizes the importance of the Corporation meeting its linguistic obligations under Parts IV, V, VI and VII of the Act, as well as complying with the Supreme Court ruling in Desrochers v. Canada (CALDECH) by demonstrating creativity and innovation. Accordingly, in June 2010, the TBS sent an evaluation grid to all institutions subject to the Act, including Air Canada, to help them implement the Supreme Court decision.
Government policy needs to achieve the right balance between the needs of official language minority communities and sound management of public monies. Rest assured that we will continue to work closely with all federal institutions so that they meet their obligations under the OLA.
We wish to thank you and the members of the Senate Committee for the work carried out during your review. The Government would like to assure the Senate Committee that it always gives due consideration to the issues raised in its reports and that it remains firmly committed to making the important objectives of the OLA a reality.
The Honourable Tony Clement