Information document on the Official Languages Act

This document was prepared for information purposes and does not constitute a legal opinion

The present Official Languages Act (OLA or 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 20 of the Canadian Charter of Rights and Freedoms (Official Languages of Canada). The 1988 OLA is so imbued with the letter and spirit of the Charter language guarantees that it soon came to be viewed as being quasi-constitutional.

The new Act differs from the original in several respects 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 clarifying those rights, the 1988 Act provides for administrative and judicial remedies for violations of the rights it safeguards. It also sets out major commitments. For example, Part VII of the 1988 OLA outlines the federal government's formal commitment to enhance the vitality of the English and French linguistic minorities in Canada and support and assist their development; and to foster the full recognition and use of both English and French in Canadian society.

In particular, the purpose of the 1988 OLA is to

• ensure respect for English and French and ensure equality of status and equal rights and privileges as to their use in all federal institutions;
• support the development of English and French linguistic minority communities; and
• advance the equality of status and use of the English and French languages.

The 1988 Act applies to all "federal institutions," a term that is defined in section 3 of the OLA.

Part I (Proceedings of Parliament) reaffirms, in subsection 4(1), the 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 (subs. 4(2)). Subsection 4(3) further provides 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 that a translation into the other official language must be included.

Part II (Legislative and Other Instruments) reaffirms, in sections 5 and 6, the obligation set out in subsection 18(1) of the Charter to print and publish statutes, journals and other records of Parliament in English and French. Moreover, any instrument made in the execution of a legislative power conferred by or under an Act of Parliament that is made by, or with the approval of, the Governor in Council or one or more ministers of the Crown; is required by or pursuant to an Act of Parliament to be published in the Canada Gazette; or is of a public and general nature shall be made in both official languages (subs. 7(1)). All instruments made in the exercise of a prerogative or other executive power that are of a public and general nature must be made in both official languages and, if printed and published, must be printed and published in both official languages (subs. 7(2)). Section 8 provides that documents made by or under the authority of a federal institution that are tabled in Parliament by the Government of Canada must be tabled in both official languages. Part II also has provisions regarding the language of international treaties and federal-provincial agreements (s. 10), notices, advertisements and other matters that are published by federal institutions (s. 11), and instruments directed to or intended for the notice of the public and that are made or issued by a federal institution (s. 12). It is important to note that pursuant to section 13, any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in Part II that is made, enacted, printed or tabled in both official languages must be made, enacted, printed or tabled simultaneously in both languages, and both language versions are equally authoritative.

Under Part III (Administration of Justice), federal courts

• have, in any proceedings before them, the duty to ensure that any person giving evidence before it may be heard in the official language of his or her choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language (subs. 15(1));
• have, in any proceedings conducted before them, the duty to ensure that, at the request of any party to the proceedings, facilities are made available for the simultaneous interpretation of the proceedings from one official language into the other (subs. 15(2));
• have the duty to ensure that every judge or other officer is able to understand the official language chosen by the parties (or both languages) without the assistance of an interpreter (s. 16), an exception being made for the Supreme Court of Canada;
• have the duty to ensure that the pre-printed portion of any form that is used in proceedings before them and is required to be served by any federal institution that is a party to the proceedings on any other party shall be in both official languages (s. 19); and
• have the duty to ensure that any final decisions, orders or judgments are made in both official languages (s. 20).

Where Her Majesty in right of Canada or a federal institution is a party to civil proceedings before a federal court, Her Majesty or the institution concerned shall use, in any oral or written pleadings in the proceedings, the official language chosen by the other parties (s. 18).

Part III applies only to the federal courts, a term that is defined in the OLA and includes 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 uphold the constitutional right of all Canadians to communicate with and obtain services from federal institutions in the official language of their choice.

Part IV guarantees 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 or organization acting on their behalf must ensure that such persons or organizations communicate with and serve the public in both official languages as though they were offering the services themselves.

All services must be offered equally in English and French.

Part V (Language of Work) provides that officers and employees of federal institutions have the right, in accordance with the provisions of Part V, to use English or French at work.

In the National Capital Region and in the other regions prescribed to be bilingual for the purposes of Part V, federal institutions must ensure that the work environment is conducive to the effective use of both official languages and must allow their employees to use either official language.

Regions prescribed to be bilingual for the purposes of Part V include parts of Northern and Eastern Ontario, the Montreal area, parts of the Eastern Townships, the Gaspésie, 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 prescribed regions must comply with certain minimum obligations (enumerated in subs. 36(1)):

• 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 and support services); and
• ensure that, where it is appropriate or necessary in order to create a work environment that is conducive to the effective use of both official languages, supervisors are able to communicate in both official languages with officers and employees of the institution in carrying out their supervisory responsibility, and any management group that is responsible for the general direction of the institution as a whole has the capacity to function in both official languages.

Federal institutions located in bilingual regions also have the duty to ensure that all other reasonable measures are taken to establish and maintain work environments of the institution that are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees (subs. 36(2)).

In areas outside the prescribed 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) sets out 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 is also committed to ensuring 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.

Part VII (Advancement of English and French) sets out the Government of Canada's commitment to enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development, and to foster the full recognition and use of both 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.

On November 25, 2005, Bill S-3, An Act to Amend the Official Languages Act (promotion of English and French) was given Royal Assent; its effect was to amend Part VII of the OLA and the Act's court remedy provision. 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. To date no such regulations have been made.
• 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 especially the case for the Department of Canadian Heritage, as a result of the responsibilities assigned to its minister under sections 42, 43 and 44 of the OLA. Under section 42 of the Act, the Minister of Canadian Heritage, in consultation with other federal ministers, must encourage and promote a coordinated approach to federal institutions' implementation of their commitment under section 41.

Subsection 43 sets out a series of measures the Minister of Canadian Heritage may take to advance the equality of status and use of English and French in Canadian society and, without restricting the generality of the foregoing, may take measures to

1. enhance the vitality of the English and French linguistic minority communities in Canada and support and assist their development;
2. encourage and support the learning of English and French in Canada;
3. encourage and assist provincial governments to support the development of English and French linguistic minority communities generally and, in particular, to offer provincial and municipal services in both English and French and to provide opportunities for members of English or French linguistic minority communities to be educated in their own language; and
4. encourage and assist provincial governments to provide opportunities for everyone in Canada to learn both English and French.

These are just some of the measures the Minister of Canadian Heritage may take; the OLA enumerates others.

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 to advance the equality of status and use for English and French in Canadian society (subs. 43(2)).

Finally, 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.

* Order in Council P.C. 2018-1017 (July 18, 2018) transfers from the Minister of Canadian Heritage to the Minister of La Francophonie the powers, duties and functions of the Minister of Canadian Heritage under the OLA. A second Order in Council (P.C. 2018-1006) designates the Department of Canadian Heritage to provide support to the Minister of La Francophonie in the carrying out of the responsibilities of that Minister which are related to official languages.

Part VIII (Responsibilities and Duties of Treasury Board in Relation to Official Languages of Canada) 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, whose duty it is to take "all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society." Among other things, the Commissioner may do the following:

• Conduct and carry out investigations of federal institutions either on his own initiative or pursuant to any complaint made to the Commissioner. These investigations fall into two main categories: handling complaints and conducting audits and reviews. The Commissioner may look into complaints from any person or group that feels a federal institution has not complied with the spirit and intent of the Act. The Minister may investigate any complaint made to the Commissioner arising from any act or omission to the effect that, in any particular instance or case, (a) the status of an official language was not or is not being recognized, (b) any provision of any Act of Parliament or regulation relating to the status or use of the official languages was not or is not being complied with, or (c) the spirit and intent of this Act was not or is not being complied with in the administration of the affairs of any federal institution (e.g., a violation of labelling regulations under the Food and Drugs Act).
• Where adequate and appropriate action has not been taken by a federal institution in response to an investigation report with recommendations by the Commissioner, the Commissioner may submit the report to the Governor in Council. The Governor in Council may take such action as the Governor in Council considers appropriate in relation to any report transmitted by the Commissioner and the recommendations therein.
• If, within a reasonable time after a copy of a report is transmitted to the Governor in Council, adequate and appropriate action has not, in the opinion of the Commissioner, been taken thereon, the Commissioner may submit the report to Parliament.

As soon as reasonably practicable after the termination of each year, the Commissioner prepares and submits to Parliament a report relating to the conduct of his office and the discharge of his duties under the OLA during the preceding year (s. 66). Under section 67 of the OLA, the Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report thereon should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 66.

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 Parts IV, V and VII 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 in the circumstances. The remedy may, for example, 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): The OLA contains a primacy clause in section 82. Under this provision, in the event of any inconsistency between Parts I, II, III, IV and V of the Act and any other Act of Parliament or regulation thereunder, except for the Canadian Human Rights Act or any regulation made thereunder, Parts I, II, III, IV and V prevail to the extent of the inconsistency.

Under section 88 of the OLA, the administration of the OLA, any regulations and directives made under the OLA and the reports of the Commissioner, the President of the Treasury Board and the Minister of Canadian Heritage made under the OLA shall be reviewed on a permanent basis by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established for that purpose. There are currently two such committees: one of the House of Commons and one of the Senate.

With respect to staffing, under section 91 of the Act, the application of official language requirements to a particular staffing action is only authorized when those requirements are objectively required to perform the functions for which the staffing action is undertaken.

If you have any legal questions pertaining to the OLA or any other language guarantee, you can contact the Official Languages Directorate (Law Team) at OLAD_DLO@justice.gc.ca.