Analytical Grid (Substantive Equality)

1. Introduction

The Supreme Court of Canada (the Court) rendered its decision in the Desrochers v. Canada (Industry) case, (the CALDECH case) in February 2009. In this decision, the Court further defined the nature and scope of the principle of linguistic equality in the context of communications and the provision of services to the public by the federal government. Federal obligations in this area stem from s. 20 of the Canadian Charter of Rights and Freedoms and Part IV of the Official Languages Act (OLA).

The Court clarified that the principle of substantive equality (defined below) in the provision of government services provides a guarantee in relation to the services offered. More specifically, the Court stated that depending on the nature of the service and its objectives, the development and implementation of identical services for each official language community may not make it possible to achieve substantive equality. The Court indicated that the content of the principle of linguistic equality in government services is not necessarily uniform. One can conclude from this decision that existing services may sometimes have to be adapted to take into account the needs of the minority as well as those of the majority.

2. Definitions

The following is a list of definitions of concepts to assist in the reading of this document and in the application of the grid:

Formal Equality/ égalité formelle:

Formal equality is achieved when we treat members of the official language minority community and those of the majority community in the same way by offering them identical services in French and in English without taking into account the possible differences that exist between the members of these two communities.

Substantive equality/ égalité réelle:

Substantive equality is achieved when one takes into account, where necessary, the differences in characteristics and circumstances of minority communities and provides services with distinct content or using a different method of delivery to ensure that the minority receives services of the same quality as the majority. This approach is the norm in Canadian law.

Single Uniform Service/Service uniforme:

A service or program which is delivered in the same way and with the same content in English and in French.

Delivery Method/ Mode de prestation:

A way of delivering the service such as the following:  in person, on-line, telephone, classroom learning, e-learning, etc.

3. Understanding the Concept of Substantive Equality

Impact of CALDECH

The parties to the Court’s decision agreed that there was a constitutional duty to make services of equal quality available to the public in both official languages and the standard to be achieved was that of substantive equality as opposed to mere formal equality.

What emerges from the decision is that while from a practical standpoint, implementing identical services for each language community can be sufficient in some cases to comply with the principle of linguistic equality, but depending on the nature of the service in question, it is possible that substantive equality will not always result from this strategy.

The following two examples are for illustration purposes only to compare the two concepts.  Note that substantive equality is the norm in Canadian law.

Formal Equality Example: Employment Insurance Programs – Job Search Skills

Workshops are offered to assist unemployed Canadians in their job search or to reorient them into the job market. Identical services, as to their content and method of delivery, are offered in English and French to the majority and the minority.

Substantive Equality Example: Employment Insurance Programs – Job Search Skills

Workshops are offered to assist unemployed Canadians in their job search or to reorient them into the job market. It is determined that in the case of the minority, there is more of a need to spend time on basic literacy skills and preparing resumes. Therefore the content of the service is changed to address this.

Perhaps it is determined that in the case of the minority, the population is more widely dispersed and therefore on-line workshops are more accessible than classroom sessions. In this case the delivery method is changed to meet the needs of the minority

4. Objective of the Analytical Grid

This analytical grid aims to assist federal institutions in their reflection for applying the principle of substantive equality to their programs and services in relation to Part IV of the OLA, Communications with and Services to the Public. It does not intend to provide a comprehensive list of criteria for institutions to use when adapting or adjusting a particular program or service. It does not constitute legal advice and any question concerning the scope and interpretation of Part IV of the OLA should be forwarded to the Departmental Legal Services Unit for advice.

This analytical grid will assist federal institutions in determining whether their programs or services need to be adjusted in order to provide services of equal quality to the official language minority community. Since the determination of whether services are of equal quality requires a comparison between the services offered to the majority and those provided to the minority, the analytical grid is intended to be used where a program or service is offered to both official language communities as opposed to a program or service that is targeted to only one official language community.

The analytical grid is divided into three parts: The first section identifies the type of programs and services affected; the second section addresses whether the same service or program can be used for both the majority as well as the minority in order to provide the same benefits for both official languages groups; and the third section helps determine to what extent a program or service should be adapted or changed in order to reach substantive equality.

Programs and services offered by third parties

Institutions are reminded that this analysis is also required for those services and programs that are offered by third parties “on behalf of” federal institutions. In fact, section 25 of the OLA provides that federal institutions that entrust to third parties the delivery of services or communications that they themselves are required to provide in both official languages must ensure that these third parties carry out this obligation. Institutions are responsible for the actions of third parties in this regard, and could end up the subject of a complaint to the Commissioner of Official Languages and could be required to appear in federal court under the OLA if they fail to meet this obligation.

This analysis will normally not be required in the context of transfer payments, as such payments do not result in the acquisition of any goods, services or assets by the Government of Canada, and therefore the recipient should not, in principle, represent a third party acting  “on behalf of ”  the government.

However, it is important to point out that the CALDECH decision was rendered in connection with a transfer payment program, and that the Court found that, in the specific situation before it, a recipient was acting “on behalf of ”a federal institution. Thus, federal institutions are encouraged to be vigilant in developing transfer payment programs, to consult with their legal services team in order to determine the scope of their institution’s linguistic obligations (particularly to clarify if in the transfer payment program in question, it has obligations under section 25 of the OLA) and to use this analytical grid when necessary.

5. Illustrations of the Use of the Grid

The following examples are provided as illustrations as to how the analytical grid may be applied to various government programs/services.

Step 1: Example of a program which may not be affected:

The first step of the analytical grid is to determine whether the particular program or service is affected. After going through the series of questions, you may determine that the answer is ‘NO’ to the four questions. Therefore, due to the nature and objective of the service or program, you may not need to adapt it to the particular needs of the official language minority community.

Illustration: Issuing Passports

Part of Passport Canada’s role is to issue passports to Canadians. It offers these services across the country on an individual basis through a variety of delivery modes and this service is a one-time transactional service. In going through the four questions in Step 1 of the analytical grid, all the answers would be ‘NO’. Therefore, this is a service which would not be applicable and one would not proceed to step 2.

Step 2: Example of a program or service where a single uniform service is adequate and would offer the same benefits for members of both official language communities:

As you proceed in your analysis and you determine that a service or program falls within Step 2 of the analytical grid, you must determine whether the single uniform service is adequate to provide the same benefits for members of both official language communities.  To determine this, you would need to know whether the linguistic minority has different needs in relation to the program or service

Illustration: Employment Insurance Benefits

Employment Insurance provides temporary financial assistance to unemployed Canadians while they look for work or upgrade their skills. The same program and services are offered across the country and are delivered in the same ways in both English and French. This single uniform service provides the same benefits for members of both official language communities due to the nature of the service.

Step 3: Example of a program/service that must be adapted to the needs of the official language minority community:

In this step of your analysis you must determine how the program or service should be adapted to the needs of the official language minority in order to achieve substantive equality. This can be done by providing distinct content or by providing a different service delivery method or both.

Illustration: Program to assist community development:

An economic development agency sets up a community economic development program. Within this program, community futures development corporations (CFDC) offer on the agency’s behalf local services adapted to the region’s needs.

The agency consults with the majority to identify their needs. At the same time it consults with the minority to the same extent as the majority in order to identify their particular needs. In order to provide services in its region, a CFDC located in a region with an Anglophone majority and Francophone minority sets up a Francophone advisory committee to identify ways to adapt its services to the needs of the Francophone minority. It determines that in order to provide the same quality of service to the minority as to the majority, it has to take different approaches to advertising and networking. Thus, it publishes ads in Francophone community newspapers and broadcasts them on French radio; it communicates with key representatives of the minority Francophone community to inform them of its services; it uses French-speaking volunteers to promote its services in the community, and it publishes a bilingual bulletin that it sends to different Francophone businesses around the region.

6. Documenting the Steps Taken and Consulting with Legal Services.

Institutions should feel free to adapt the analytical grid to adjust to the diversity of their mandate. Deputy Heads are responsible for implementing the Court’s decision in their institutions and should document the steps taken to ensure compliance and to be able to report on results.

Requirements under Part VII of the OLA may require additional steps by federal institutions. Institutions are reminded that they should consult their legal services units in order to determine the requirements of Part IV (including section 25) and Part VII of the OLA, in specific circumstances.

Analytical Grid for Analysing Federal Services and Programs in Light of the Principle of Substantive Equality

This analytical grid is to be used in order to ensure that the services that your institution is required to offer in both official languages pursuant to Part IV of the Official Languages Act (Communications with and Services to the Public), comply with the directions provided by the Supreme Court of Canada in its CALDECH decision. Please note that your institution may still have obligations under Part VII of this Act and that this analytical grid is not intended to assist you in determining how to comply with those obligations.

There is an introduction to this analytical grid that contains definitions and examples. Institutions should document all steps taken in this process.  If you require any assistance in applying this grid and identifying your obligations under the Official Languages Act, please consult your departmental legal services unit.

Name of service or program:
Short description
:

Step 1 – Determine whether the service or program may be affected.
Questions Yes No
a) Is this a community service or a program as opposed to a service or a program provided to members of the public on an individual basis?    
b) Is this a service or program for which regional characteristics must be taken into account?    
c) Is this a service or program that seeks to provide benefits over the medium or long term and involves an ongoing relationship with recipients (as opposed to a one-time transactional service)?    
d) Is the participation of the target population in its development and/or implementation required to meet the objectives of the service or program?    

If you answered “No” to all the questions in Step 1, the analysis is finished and shows that the program or service does not have to be adapted to the needs of the minority.Footnote 1

If you answered “Yes” to at least one of the questions in Step 1, please go to Step 2.

Step 2 – Determine whether a single uniform service is adequate.
Questions Yes No

a) Taking into consideration the target clientele and the nature of the program or service, is this a service or program for which a single uniform service (the same delivery method and content for both groups) would have the same benefits for members of both official language communities?

  • In order to answer this you would need to know whether the linguistic minority has different needs in relation to the service or program. The linguistic minority should be consulted if you do not know its needs.
   

If you answered “Yes” to this question, the analysis is finished as you have determined that a single uniform service is appropriate for members of both official language communities.

If you answered “No” to this question, go to Step 3 to determine whether the service or program must be adapted.

Step 3 – Determine how the service or program must be adapted to the needs of the official language minority community.
Questions Yes No
a) Should the content of the service or program be adapted to take into account the linguistic minority’s different needs?    
b) Should the service delivery method be adapted to take into account the linguistic minority’s different needs?    

If you answered “Yes” to any of the questions in Step 3, the service or program should be adapted to the needs of the minority to ensure that the content or delivery method takes into account those needs. If the program or service has already been adapted this should be documented as part of the process.

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