The Official Languages Act
Official Languages Law Group
Public Law Sector
Department of Justice Canada
This document was prepared for information purposes and does not constitute a legal opinion
The present Official Languages Act was enacted in 1988. It replaced the 1969 Act, which was considered to be somewhat obsolete, particularly in view of the enactment of sections 16 to 23 of the Canadian Charter of Rights and Freedoms (Official Languages of Canada) and because during the 1970s and 1980s the courts had made a number of decisions clarifying constitutional language rights. The new Act differs from the original Act in that it provides a more precise definition of the rights of the public in relation to the language of communications and services from federal institutions and the rules that apply to the language of work for federal employees. In addition to setting out those rights, the Act provides for administrative and judicial remedies for violations of those rights. The Official Languages Act also sets out the formal commitment by the Government of Canada to ensuring the full and equitable participation by English-speaking and French-speaking Canadians in federal institutions (Part VI) and the formal commitment of the federal government to enhancing the vitality and development of the English and French linguistic minority communities in Canada (Part VII). Since 2005, federal institutions have had a duty to take positive measures for the implementation of the commitment set out in Part VII, and remedies may now be sought in the courts under Part VII of the OLA.
Part I (Proceedings of Parliament) sets out, in subsection 4(1), the fundamental constitutional right provided for in subsection 17(1) of the Charter, and gives everyone the right to use either of the official languages in any debates or other proceedings of Parliament. This Part of the Act further provides, above and beyond that constitutional minimum, for simultaneous interpretation of the debates and other proceedings of Parliament (subsection 4(2)). Subsection 4(3) provides as well that everything reported in official reports of debates or other proceedings of Parliament must be reported in the official language in which it was said and a translation into the other official language must be included.
Part II (Legislative and Other Instruments) provides, above and beyond the "constitutional minimum" that applies to parliamentary records (section 5) and Acts of Parliament (section 6), that any instruments made in the execution of a legislative power or of an executive power that are "of a public and general nature" (section 7) must be in both official languages. Section 8 provides that documents made by or under the authority of a federal institution that are tabled in Parliament must be tabled in both official languages. The two versions are to be made simultaneously and are equally authoritative (section 13).
Part III (Administration of Justice) requires that
- interpretation services be offered (section 15);
- every federal court, other than the Supreme Court of Canada, ensure that the judge who hears a particular case is able to understand the official language chosen by the parties for the hearing without the assistance of an interpreter (section 16);
- the federal government abide by the language choice made by the other party in cases to which it is a party that are heard by the federal courts (section 18);
- the pre-printed portion of any form that is used in proceedings before a federal court and that is required to be served by any federal institution be bilingual (section 19);
- final decisions of the courts be made available in both official languages (section 20).
Part III applies only to the federal courts: courts or other bodies created under a federal Act to administer justice. The federal institutions to which this definition applies include all courts created by Parliament under section 101 of the Constitution Act, 1867 and some 40 administrative tribunals.
The main purpose of Part IV (Communications with and Services to the Public) is to ensure that federal institutions implement measures to enable Canadians to fully exercise their constitutional right to be served in the official language of their choice.
Part IV confirms the right of the public to communicate with and receive services from all federal institutions in either official language, in the following locations:
- head or central office of a federal institution as well as other offices located in the National Capital Region;
- offices reporting directly to Parliament, such as the Office of the Auditor General;
- offices where there is "significant demand" for communications and services in both official languages;
- The Act specifies that, in assessing significant demand, the government may take the following factors into account: the population of the minority in the region served, its particular characteristics, its proportion of the total population of the region, the volume of communications and services provided by an office in either language, as well as any other relevant factors.
- offices whose "nature" makes it reasonable that both official languages be used in communications and services;
- The Act specifies that the "nature of the office" will be assessed by the government, taking into account such criteria as the health, safety and security of the public, the location, or the national or international mandate of the office.
- offices providing services to the travelling public where there is significant demand.
Under section 25, federal institutions that communicate with and provide services to the public through another person, such as an agent acting on behalf of a federal institution, must ensure that the other person communicates and provides services in both official languages.
Part V (Language of Work) provides that officers and employees of federal institutions have the right, in accordance with the corresponding duties imposed on institutions, to use English or French in specified work situations.
In the National Capital Region and in designated regions, federal institutions must ensure that the work environment is conducive to the effective use of both official languages and that their employees may exercise the right to use either language, subject to the obligations to serve the public and other employees.
The designated regions include parts of Northern and Eastern Ontario, the Montreal area, parts of the Eastern Townships, Gaspésie and Western Quebec, and New Brunswick. In those regions, both official languages are commonly used, whereas in Canada's other regions only one language predominates.
To create a work environment that is conducive to the effective use of both official languages, federal institutions located in the National Capital Region and the designated regions must comply with certain minimum obligations:
- provide employees with personal services, including health-related services, professional development, compensation and orientation services, in both official languages;
- provide employees with corporate services, such as legal, financial and administrative services, in both official languages;
- provide employees with regular and widely used work instruments produced by or on behalf of the federal institution in both official languages;
- ensure that regularly and widely used information technology goods and services are acquired in both official languages, so that employees are able to use them in the official language of their choice. Information technology goods and services include software and software packages, user manuals, support services and professional training;
- ensure that any employee performing duties requiring the use of both official languages (bilingual position) or duties requiring the use of either language (either/or position) are supervised in the language chosen by the subordinate;
- ensure that senior management has the capacity to function in both official languages.
In areas outside the designated regions (sometimes called "unilingual regions"), the language of internal communications will be English or French depending on which language predominates in the region where the office is located. Federal institutions must ensure, however, that English and French as minority languages receive comparable treatment in regions where one language predominates. For example, if a federal institution provides work instruments in English to its English-speaking employees in predominantly French-speaking regions, it should provide work instruments in French to its French-speaking employees in predominantly English-speaking regions.
Part VI (Participation of English-speaking and French-speaking Canadians)confirms the federal government's commitment to ensuring that English-speaking and French-speaking Canadians have equal opportunities to obtain employment and advancement within federal institutions. The government must also ensure that the composition of the work force in federal institutions tends to reflect the presence of both language groups in the general population, bearing in mind the institution's mandate, the public served and the location of the offices. In fulfilling these commitments, federal institutions must respect the merit principle when staffing positions and must also take into account the provisions of the Act regarding service to the public and language of work.
Part VII (Advancement of English and French) sets out the Government of Canada's commitment to enhancing the vitality of official language minority communities and to promoting English and French in Canadian society. That commitment is clearly stated in subsection 41(1) of Part VII of the OLA, and is binding on the entire federal government. All institutions that qualify as federal institutions by virtue of their attachment to the federal government are therefore responsible for carrying out that commitment.
On November 24, 2005, an important addition was made to official languages legislation and policy in Canada. Bill S-3, An Act to amend the Official Languages Act (promotion of English and French), was given Royal Assent; its effect is to amend Part VII of the OLA, extend the scope of that Part and increase the responsibility of federal institutions. Bill S-3 amends the OLA in three ways.
- Subsection 41(2) strengthens the federal government's commitment to promoting English and French by adding the obligation of federal institutions to take positive measures to implement that commitment. This subsection also reiterates the well-established legal principle that the federal government must respect the jurisdiction and powers of the provinces in implementing its commitment.
- Subsection 41(3) provides for the duties of federal institutions to be further clarified by authorizing the Governor in Council to make regulations prescribing the manner in which the duties of federal institutions are to be carried out.
- Section 77 makes Part VII of the OLA enforceable: a remedy may be obtained from a court for violations of the obligations set out in this Part of the OLA.
Although the commitment set out in Part VII of the OLA is binding on all federal institutions, some of them have a particular role to play. This is particularly the case for the Department of Canadian Heritage, because of the responsibilities assigned to its minister under sections 42, 43 and 44 of the OLA.
Under those sections, the Minister of Canadian Heritage may exercise the federal government's spending power in order to advance the equality of status and use of both official languages. For example, funding allocated to the Minister's language rights support programs is used to assist the development of linguistic minority communities, encourage the learning of the two official languages by everyone and encourage the provinces to offer services in both official languages.
The Minister may also take such measures as the Minister considers appropriate to ensure public consultation in the development of policies and review of programs relating to the official languages. The Minister must also encourage and promote a coordinated approach to the implementation by federal institutions of this commitment.
As well, the Minister is required to submit an annual report to Parliament on matters relating to all aspects of the Minister's responsibilities in respect of official languages.
Part VIII (Responsibilities and Duties of Treasury Board in Relation to Official Languages) provides that, as the employer and administrator of the Public Service of Canada, the Treasury Board is the principal manager of the Official Languages Program in federal institutions under its jurisdiction. In the 1988 Act, Parliament gave it responsibility for the general direction and coordination of policies and programs relating to the implementation of Parts IV, V and VI of the Act. This is an important change from the 1969 Act.
Part IX (Commissioner of Official Languages) sets out the duties and functions of the Commissioner, who continues to ensure that the status of the official languages is recognized and that federal institutions comply with the spirit and intent of the Act, including in their activities in promoting English and French in Canadian society.
- The Commissioner is authorized to carry out investigations of federal institutions. These investigations fall into two main categories: handling complaints and conducting audits and reviews. The Commissioner investigates complaints from any person or group of persons who believe that a federal institution has failed to comply with the spirit and intent of the Act. As language auditor, the Commissioner ensures that federal institutions respect the equality of status of English and French. The Commissioner's power to investigate also extends to other legislation affecting official languages, such as labelling regulations made under the Food and Drugs Act.
- Where appropriate action has not been taken by a federal institution in response to an investigation by the Commissioner, the Commissioner may submit the investigation report to the Governor in Council for action.
- If the government fails to take action within a reasonable time, the Commissioner may report to Parliament.
Part X (Court Remedy) provides that any person who has submitted a complaint to the Commissioner of Official Languages alleging that a right or duty under sections 4 to 7, sections 10 to 13, section 91 or Part IV or Part V of the Act has been violated may seek a remedy from the Federal Court. Application for the remedy is ordinarily made within 60 days after the results of the investigation by the Commissioner are reported to the complainant.
If the Court finds that the federal institution has failed to comply with the Act, it may grant such remedy as it considers just and reasonable. The remedy may consist of an order of mandamus to compel compliance with the Act or an award of damages, if appropriate on the facts of the case.
The Commissioner may take a case to the Federal Court personally with the consent of the complainant, appear on behalf of the complainant, or appear as a party to a proceeding commenced by the complainant. The Commissioner may also present, as evidence in court proceedings, information relating to similar complaints involving the same federal institution.
Part XI (General Provisions): It is important to note that in the event of any inconsistency, the rights and duties in the Official Languages Act prevail over the inconsistent provisions of other Acts of Parliament, with the exception of the Canadian Human Rights Act and regulations made under that Act, as provided in section 82.
The role of the Standing Joint Committee on Official Languages is set out in section 88: the Committee is responsible for reviewing the administration of the Act, regulations and directives, and the reports of the Commissioner, the President of the Treasury Board and the Minister of Canadian Heritage.