Part IV: Review of the OLA : Implementation (Proposal of Amendments)
We can adopt the best Official Languages Act there is, but without an proper implementation plan, it will have virtually no effect. When our current Act was revised in 2013, Section 5.1 was added. The purpose of this addition was to address the issue of implementation. The section seemed promising. Unfortunately, as I will show, successive governments failed to follow up on implementation and the section quickly fell into oblivion and indifference.
Section 5.1 was introduced as a result of the revision of the Act in 2013. The Select Committee on the Revision of the Official Languages Act explains the purposes of this provision as follows:
“The committee believes that it is important to confirm in the Act the government’s obligation to provide itself with a comprehensive plan for ensuring compliance with the Official Languages Act. This plan should present a variety of ways to meet challenges and contain innovative actions to promote the creation of a bilingual culture within the civil service and to advance the substantive equality of both official linguistic communities. This comprehensive plan should also identify mechanisms to put in place so that government can reflect the specific reality of each linguistic community when developing its programs and policies.” [my emphasis].
The objective was noble, but unfortunately, the result, as we shall see, never met expectations. Let us analyze section 5.1.
Subsection 5.1(1) provides for the development of a plan setting out the way the obligations under the Official Languages Act are to be met. The plan must specify the goals and objectives of the province's obligations, as well as measures to ensure the equal status of the two linguistic communities, the equal use of English and French in the public service, the consideration of language of work when identifying work teams and developing linguistic profiles for positions in the public service. The plan must also propose measures to improve the bilingual capacity of senior civil service. In addition, it must set out measures to review and improve public signage policies, considering the two linguistic communities and the linguistic composition of a region. Finally, the plan must set out the performance measures used to evaluate the effectiveness of the measures and the time frames for their implementation.
Under subsection 5.1(2), the Premier is responsible for the central coordination of the plan and for ensuring its implementation. Section 5.1(3) provides that each component of the public service will be required to develop an action plan setting out how the goals and objectives and the implementation of the measures in the Plan will be achieved. Subsection 5.1(4) requires that, promptly after the end of a fiscal year, institutions covered by the provision submit a report to the Premier on the activities undertaken under their action plans. The Premier is required under subsection 5.1(5) to report annually to the Legislative Assembly on the activities undertaken under the plan.
The Official Languages Act therefore required the government to have an Implementation Plan as of December 5, 2013. However, it was not until July 24, 2015 that it "complied" with this obligation[1]. Since then, no changes have been made to the plan and no further mention has been made of section 5.1. For all intents and purposes, this section has remained an orphaned and forgotten provision.
We will therefore focus on the 2015 Plan, which has the "distinction" of being the only plan that "purports" to follow the obligations of Section 5.1.
(i) Section 5.1(1)(a)
Subsection 5.1(1) provides that the province shall develop a plan setting out the manner in which it will meet its obligations under the Official Languages Act. Paragraph 5.1(1)(a) specifically provides that the plan shall set out the goals and objectives of the province's obligations.
I found no clear statement of these goals and objectives in the 2015 Plan. It is true that in the section entitled "Vision by sector of activity", under the heading "language of service", we find the following statement: "An active offer and services of equal quality in English and French, according to the person’s choice, regardless of location in the province"[2]. And a little further: the plan "is designed to eliminate the shortfalls that persist.[...] It will link the findings to date with the overall anticipated outcomes, strategic and measurable objectives, and the means to be implemented”.
While I agree with these objectives, I find it difficult to conclude that they meet the intent of paragraph 5.1(1)(a). We would have expected the 2015 Plan to state clearly at the outset the nature of the obligations imposed by the Official Languages Act - which are not limited to language of service - and to set out for each of these obligations the province's goals and objectives.
On the subject of language of service, the province notes that, despite the fact that several years have passed since the language of service policy[4] was implemented, "the policy is still largely misunderstood or inappropriately applied.[5] The province therefore believes that institutions must "continue to implement the measures needed for full application of the [OLA] with respect to language of service”.[6] The means by which this objective would be achieved remain fairly general. They provide, among other things, that "departments and agencies" ensure that all written and oral communications are in the language of choice of the recipient, that the principle of active offer is applied, that "departments and agencies" ensure that the language skills of employees "are balanced to provide quality services in both official languages", and that "departments and agencies" take measures to ensure that the language of service is the same in both official languages, that they will take steps to ensure that the language capabilities of employees in the other official language are maintained or improved, and finally, that they will ensure that service providers' contracts with third parties respect "the language criteria" set out in the language of service policy.
These are obligations that, for the most part, already exist in the Official Languages Act. Simply repeating them does not constitute their implementation as required by section 5.1.
(ii) Paragraph 5.1(1)(b)
Paragraph 5.1(1)(b) requires the province to set out in the Plan measures to ensure the equal status of the two linguistic communities. It would have been interesting if the authors of the Plan had defined what they understood by this statement, but this was not done. The section entitled "Legal Foundations" does refer to the Act respecting the equality of the two linguistic communities and to section 16.1 of the Charter, but nothing more. Focus 3, entitled "Development of the two official linguistic communities", is the only place where an indirect reference is made to paragraph 5.1(1)(b). However, strategic objectives 3.1 ("Official bilingualism is a fundamental value conveyed by the government and its employees") and 3.3 ("The government takes advantage of official bilingualism for the purposes of economic development and job creation") do not seem to me to be very relevant for the purposes of this paragraph.
Strategic objective 3.2 is perhaps more relevant in this regard. It states that "[i]mplementation or amendment of a policy or program takes into account its impact on the province’s Anglophone and Francophone communities".[7] In this objective, we see an application of the principle of substantive equality. As I have already explained in another text, substantive equality is achieved when differences in the characteristics and circumstances of the minority community are taken into account, by offering services with distinct content or through a different delivery method in order to ensure that the minority receives services of the same quality as the majority[8]. The 2015 Plan, however, offers no guidance on how to achieve this objective, except to say that "Briefs submitted to the Executive Council will contain a section discussing the potential impact of the program or policy on Anglophone and Francophone communities”. There is no way of knowing if this is the case, but I doubt it.
The Plan goes on to state that "A practical guide will be developed for writing MECs concerning official languages"[9]. Again, I am not aware of any such guide.
(iii) Paragraphs 5.1(1)(c) and (d)
Paragraphs 5.1(1)(c) and (d) deal specifically with language of work. They state that the province shall propose in the Plan measures to ensure the equal use of English and French in the public service and to ensure that language of work is taken into account in determining work teams within the public service. The Plan must develop language profiles for public service positions.
Focus 2 of the 2015 Plan addresses paragraphs 5.1(1)(c) and (d). With respect to measures to ensure the equal use of English and French in the public service, this focus provides that "All employees will work in an environment and climate that will encourage them to use the official language of their choice in their workplace". To ensure that this environment and climate exists, the following is proposed as a means: "All departments and agencies will review their linguistic profiles and determine how to enable all employees to work in the language of their choice"[10]. This approach may also be used to implement paragraph 5.1(1)(d), which requires the province to specify in the Plan measures to ensure that language of work is taken into account in determining work shifts in the public service and to develop language profiles for positions in the public service. The lack of detail in the Plan makes a serious analysis of this objective impossible.
The province then refers to the government's language of work policy, which has been in effect since 2009.[11] It notes that "most departments offer their staff the right to work in their language of choice", but they are also "the first to admit that, in some situations, it is very difficult, if not impossible, to work in one’s language of choice if that language is French”.[12] The reasons for the difficulty of working in French for public servants are said to be " time constraints and the presence of unilingual senior officials”.[13] It was also added that in some cases, given the importance or complexity of a file, "it will be requested that the work be done in English, to avoid translation”.
As for specific measures to correct this situation, the province proposes, among other things, that "The preferred language of work of all employees will be identified, particularly with respect to work tools, performance reviews, drafting of documents "[15]. I assume that the authors of the Plan meant that employees will have the right to choose both the official language in which they wish to receive their work instruments and performance appraisals and the language in which they wish to write their documents. Each of these elements is already included in the Policy and Guidelines on Official Languages - Language of Work. Therefore, these are not new measures.
The 2015 Plan also states that "support will be provided to managers to ensure that employees can work in their language of choice"[16], that " Small meetings will be held in a manner that encourages the use of both official languages", that "for large meetings, both official languages will be used"[17] and that "training courses offered to employees will be available in both official languages". We would have to see the action plans of the various parts of the public service to know whether these measures related to language of work have in fact been implemented, but to date, these plans have not been produced.
With respect to language of work, the 2015 Plan does not really include any new measures. It rehashes what already exists. Yet, this plan presented a golden opportunity to create the impetus for a permanent change of mentality within the public service.
Unfortunately, there is no clear commitment to this!
(iv) Paragraph 5.1(1)(e)
According to paragraph 5.1(1)(e) of the OLA, the Plan shall include measures to improve the bilingual capacity of senior management in the public service. The 2015 Plan makes it clear that the presence of unilingual senior management is one of the persistent barriers to the right to work in one's own language in the public service. We would therefore have expected that statements about executive bilingualism would be found under Focus 2 - Language of Work. However, in this plan, the two statements that specifically address this issue are found under Focus 1 - Language of Service.
In her 2015-2016 Annual Report, the Commissioner of Official Languages, Katherine d'Entremont, reacts as follows:
“According to government representatives, the measures related to the bilingualism of senior management were placed in the “Language of Service” focus, as it was in that area that the unilingualism of managers would cause the most problems. Moreover, the drafters felt it was not relevant to repeat these measures in the “Language of Work” focus. At the very least, this explanation reveals a lack of understanding of the reality in the field. In fact, working in the official language of one’s choice implies the ability of supervisors to communicate in the language of their employees.”[18]
Strategic Objectives 1.2 and 1.3 of Focus 1 call for measures to be put in place to improve the bilingual capacity of “senior management” and “middle management” in the public service. The means (strategies) mentioned in the Plan to achieve the objective basically repeat the words of the objective. Yet, as such, this Plan could have drawn on the excellent analysis of the situation undertaken by Commissioner d'Entremont in her 2014-2015 Annual Report[19].
In this report, Commissioner d'Entremont gave prominence to the issue of bilingualism among senior public servants. The Commissioner said that official bilingualism has never meant that all government employees must speak both official languages. She showed that, based on the latest government data, only 41% of provincial civil servants are required to be bilingual.[20] She expressed surprised at this state of affairs: "However, one would expect those primarily responsible for applying the OLA, i.e., senior public servants, to be required to speak both languages. But, in Canada’s only officially bilingual province, no policies or guidelines make it a requirement”.[21] She adds that there are several reasons for this phenomenon, and she groups them into four categories that justify the fact that bilingualism must be an essential skill for senior public service positions:
1.Communicating with the two linguistic communities
2.Ensuring the quality of bilingual services provided to the public
3.Creating a bilingual work environment
4.Embodying one of the province’s fundamental values.
Commissioner d'Entremont did not hesitate to describe the province's position on bilingualism in the senior public service as "ambiguous, if not contradictory”.
The Commissioner therefore recommended that, for the years 2015-2019, all competitions and staffing processes for deputy minister, assistant deputy minister and senior executive positions include as a prerequisite the ability to speak and understand both official languages, or a commitment to acquire this proficiency within three years of the date of appointment. Then, starting in 2020, the ability to speak and understand both official languages would become a prerequisite for appointment to any of these positions. Without bothering to study the Commissioner's proposals further, the government rejected these recommendations outright and without any discussions.
In her investigation report on the Analysis of the Official Languages Plan, Commissioner d'Entremont noted that the Plan did not set any targets for the bilingual capacity of executives.[28] She added that paragraph 5.1(1)(e) of the Official Languages Act requires the government to take measures to improve the language capacity of senior management. However, since the Plan does not provide for any such measures, she concludes that it does not comply with the Act.[29] She indicated that the only specific information mentioned in the Plan regarding bilingualism among senior public servants was the minimum level of second language proficiency required, namely the intermediate level two plus (2+),[30] which she considered too low.[31]
Commissioner d'Entremont then referred to a study conducted by the management consulting firm Goss Gilroy on second language training, which addressed the issue of the level of second language proficiency required of public servants,[32] and quoted the following statement: "Key respondents indicate that level 3 is the norm when staffing bilingual positions.”[33] She therefore recommended that, in order to ensure that implementation complies with paragraph 5.1(1)(e) of the OLA, oral communication level 3, "Advanced", should be the minimum level. This position is diametrically opposed to that of Premier Higgs, who recently proposed a reduction in language requirements for public servants.
Further in her investigation report, Commissioner d'Entremont noted that "working in the official language of one's choice implies the ability of the supervisor to communicate in the language of their employees”.[34] Indeed, for an employee to be able to exercise this right, it is not enough to allow them to work in the language of their choice. It is also necessary to create a work environment that "actively supports the use of English and French."[35] She wrote:
“However, the Plan contains very few substantive measures to address the following challenges:
· pressure exerted on Francophone employees by an organizational culture that favours English (close to 90% of the documents sent to the Translation Bureau by provincial departments are written in English);
· constraints related to proficiency in the French language (presence of unilingual Anglophone managers, presence of unilingual Anglophone employees on teams, translation deadlines for documents, lack of knowledge of specialized terms in French, etc.);
· the phenomenon of linguistic insecurity (employees believe they do not have a good grasp of their mother tongue), which can push Francophone civil servants to use English to express themselves.”
(v) Paragraph 5.1(1)(f)
Paragraph 5.1(1)(f) states that the province shall set out measures to provide for the review and the improvement, when necessary, of the public signage policies of the Province, which policies shall include consideration of the two linguistic communities and of the linguistic composition of a region.
The paragraph refers to section 29 of the OLA, which provides that "institutions shall publish all postings, publications and documents intended for the general public in both official languages”. This appears to have been completely forgotten in the 2015 Plan as there is no mention of public signage.
(vi) Section 5.1(1)(g)
The final requirement of section 5.1(1) is found in paragraph (g), which calls for the Plan to include performance measures for evaluating the effectiveness of the actions implemented under the plan and the time frames within which they must be implemented.
The Plan generally provides that the Official Languages Coordination Unit of the Executive Council Office will evaluate annually the performance follow-up reports submitted by departments and agencies. However, nowhere is there mention of the nature of these performance measures. In only one place in the Plan, in Strategic Objective 1.5 of Focus 1 - Language of Service, is there mention of "mechanisms to measure progress with regard to language of service". The ways mentioned to achieve this objective are limited to two: an evaluation of "public feedback", and "annual reporting". Annual reports are already provided for in subsections 5.1(4) and (5) of the OLA. Therefore subsection 5.1(1) had to refer to something else when it mentions performance measures. With respect to "public feedback", I do not see how this is sufficient to meet the obligation in 5.1(1)(g). Relying solely on " public feedback " is, in my view, insufficient and ineffective. Who will be collecting these comments and what methodology will be used to do so? It should be noted that people in minority situations rarely tend to complain about a lack of service in their language and that the absence of complaints is not always a sure sign that all is well.
As for the timeline for the 2015 Plan, it appears to be five years, if we go by the Action Plan Template. It is now 2021, and I see nothing to convinced me that even the fairly broad objectives of the plan have been implemented.
I believe it is important that changes be made to section 5.1 to make it more than a statement of intent, to make it a real measurement of implementation.
I therefore propose the following additions to the provision:
5.1(1)The Province undertakes to prepare an annual plan setting for the implementation of its obligations under this Act, and the plan shall include the following:
(a) goals and objectives with respect to its obligations under this Act;
(b) measures to ensure the equality of status of the two linguistic communities;
(c) measures to ensure the equality of use of the English and French language in the public service;
(d) measures to ensure that language of work is considered when identifying work groups within the public service and when developing language profiles for positions in the public service;
(e) measures to improve the bilingual capacity of senior management in the public service;
(f) measures to provide for the review and the improvement, when necessary, of the public signage policies of the Province, which policies shall include consideration of the two linguistic communities and of the linguistic composition of a region; and
(g) performance measures for evaluating the effectiveness of the measures implemented under the plan and time frames within which they must be implemented.
5.1(2)The Premier is responsible for ensuring central government coordination and oversight of the implementation of the plan prepared under subsection (1).
5.1(3)Each portion of the public service shall prepare an action plan setting out how it will meet the goals and objectives included in the plan prepared under subsection (1) and how it will implement the measures included in that plan.
5.1(4)In the month following the end of each fiscal year, each portion of the public service shall submit a report to the Premier with respect to the activities under its action plan.
5.1(5) Within one month after the end of a fiscal year and after receiving reports under subsection (4), the Premier shall table before the Standing Committee on Official Languages of the Legislative a report on the activities undertaken under the plan developed under subsection (1).
5.1(6) The Standing Committee on Official Languages of the Legislative Assembly shall review the report to ensure that it complies section 5.1 and shall make such recommendations as it considers appropriate. (Provision will have to be made for the establishment of such a committee. I will come back to this in another text).
- I am also proposing, in line with a recommendation by Commissioner d'Entremont, that for the years 2022 to 2025, all competitions and staffing processes for deputy ministers, assistant deputy ministers and senior managers include as a prerequisite the ability to speak and understand both official languages, or a commitment to acquire this ability within three years of the date of appointment, failing which the appointment will be revoked.
- That, as of 2025, the ability to speak and understand both official languages be a prerequisite for appointment to any of these positions.
- That the minimum language proficiency for these positions be set at 3.
In the next text, I will deal with deal with official languages in the Legislative Assembly and legislation.
[1] Plan on Official Languages - Official Bilingualism: A Fundamental Value, 2015, p. 1, online: Government of New Brunswick https://www2.gnb.ca/content/dam/gnb/Departments/iga-aig/pdf/PlanonOfficialLanguagesOfficialBilingualismAFundamentalValue.pdf [Plan 2015].
[2] Ibid., p 5.
[3] Ibid., p 6.
[4] Official Languages - Language of Service Policy and Guidelines, online: Government of New Brunswickhttps://www2.gnb.ca/content/gnb/en/departments/finance/human_resources/content/policies_and_guidelines/language_service.html [Policy – Language of Service].
[5] Plan 2015, 12, p 10.
[6] Ibid., p 11.
[7] Ibid., p 14.
[8] See, in particular, DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194 [DesRochers].
[9] Plan 2015, supra, p 14.
[10] Plan 2015, supra, p 12.
[11] Government of New Brunswick, Administration Manual, no AD-2919, vol 2, Language of Service Policy and Guidelines – Language of work, online: https://www2.gnb.ca/content/gnb/en/departments/finance/human_resources/content/policies_and_guidelines/language_work.html [Policy – Language of Work].
[12] Plan 2015, supra, p 12.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] “The government will develop mechanisms to strengthen the bilingual capacity of senior management in the provincial public service to better serve the public”.
[17] It would appear that a definition exists in common usage within the public service of what the authors mean by the terms "small meetings" and "large meetings". However, we have not been able to find it.
[18] Office of the Commissioner of Official Languages for New Brunswick, Investigation Report: Analysis of the Plan on Official languages -Official Bilingualism: A Fundamental Value -2015, March 2016, p 57 [Investigation Report: Plan on Official languages, 2015].
[19] Office of the Commissioner of Official Languages for New Brunswick, Annual Report 2014-2015, online: https://officiallanguages.nb.ca/wp-content/uploads/2012/02/annual_report_2014-2015.pdf [Annual Report 2014-2015].
[20] Ibid., p 18.
[21] Ibid.
[22] Ibid., p 20.
[23] Ibid., p 21.
[24] Ibid.
[25] Ibid., p 22.
[26] Ibid., p 24.
[27] «Government rejects call for all senior bureaucrats to be bilingual», CBC New Brunswick, online: http://www.cbc.ca/1.3117111.
[28] Investigation Report: Plan on Official languages, 2015, supra note 39.
[29] Ibid., p 9.
[30] Ibid.
[31] The Commissioner refers to the Second Language Oral Proficiency Evaluation scale, online: https://www2.gnb.ca/content/dam/gnb/Departments/ed/pdf/K12/eval/FSLOralProficiency.pdf. The scale can be summarized as following:
NOVICE (0+) Basic competency using memorized phrases.
BASIC (1) basic competency.
BASIC PLUS (1+) basic competency plus
INTERMEDIATE (2) limited proficiency in their second working language
INTERMEDIATE PLUS (2+) limited proficiency in their second working language
ADVANCED (3) General professional proficiency
ADVANCED PLUS (3+) General professional proficiency plus
SUPERIOR (4) Advanced professional proficiency
[32] Report on the Review of the New Brunswick Second Language Services, March 2011, Goss Gilroy Inc., quoted in Investigation Report: Plan on Official languages, 2015, supra note 39, p 10.
[33] Investigation Report: Plan on Official languages, 2015, ibid.
[34] Ibid., p 13.
[35] Ibid., p 14.
[36] Ibid.