ARCHIVED - Report of the Task Force on Government Transformations and Official Languages

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Chapter 3 - Analysis of Government Transformations

3.1 Framework for Alternative Program Delivery

Beyond the obligation on individual institutions subject to the Official Languages Act to implement its provisions, responsibility for the general direction and coordination of policies relating to service to the public, language of work and equitable participation falls on the Treasury Board. However, in recent years, its role has changed. Originally an agency focused on control, the Treasury Board has become more of a "management board", supporting an overall management system based on results and accountability. The Treasury Board now develops standards and strategic frameworks related to information and budgeting for the entire government, provides advice and assistance to departments to help them meet these standards and achieve their own objectives, and distributes information on the government's performance.

As part of the program review process, the Treasury Board Secretariat published a Framework for Alternative Program Delivery in 1995. The purpose of the Framework is to set out the major principles that should guide institutions that wish to adopt alternative methods of program delivery⁴. The Framework provides the criteria that are to serve as a guide for government transformations. Official languages considerations are found under two overall principles: "public interest" and "service quality and client orientation."

In assessing public interest, the language issue is raised in the following question: What official languages obligations should apply, and what mechanisms will ensure that they are met? The reference to language appears again in the parameters of the principle of service quality and client orientation: Will clients have access to services in the official language of their choice?

Handling the language issue indirectly, as is done in the Framework, does not do justice to its importance in Canadian society, and in Canada's laws and Constitution. What is more, the way the questions are phrased suggests that not all language rights need to be considered.

The Framework should have given language rights the pre-eminence they deserve. Under the Canadian Charter of Rights and Freedoms, this pre-eminence is a matter of obvious and fundamental public interest.

In the future, the Framework, like all other outlines of basic principles used by the federal government, should recognize official linguistic duality as a fundamental value in Canada. Otherwise, linguistic duality will have no more weight in decisions regarding the feasibility of government transformations than any other element that has to be considered.

The Framework should, among other things, emphasize the need to show how an entity that receives a mandate will fulfil the federal government's commitment, set out in section 41 of the Official Languages Act, to enhance the vitality of minority official language communities and support their development, and to foster the full recognition and use of English and French in Canadian society. The Framework should also refer to the implementation of this commitment through a concerted effort by the federal institutions for which the Department of Canadian Heritage acts as a coordinator pursuant to section 42 of the Official Languages Act. In this respect, the Framework should also stipulate that organizations concerned by government transformations must establish a process for consultations with minority official language communities regarding the impact the proposed government transformation might have on language rights.

The federal government's willingness to regain its leadership in the area of official linguistic duality must be measured by the concrete actions taken and the results obtained.

The measures proposed by the Task Force include:

• a campaign aimed at institutions that are subject to the Official Languages Act, to make them aware of the importance of official linguistic duality and of the scope of the language rights that stem from this duality;
• a high-level joint action mechanism, something that is required when official linguistic duality is taken into account in a consistent and effective manner within the framework of government transformations;
• the allocation of the funds needed to ensure that the government maintains a sufficient presence in order to contribute to the vitality of Anglophone and Francophone communities across Canada.

3.2 Examination of Different Methods of Implementing Programs and Delivering Services

In its approach to government transformations, the government has decided to follow several models. An in-depth analysis of the various methods used revealed that there is more than one way to deal with the language issue, just as there are different solutions for transformations because these are based on different models. 

Our study is concerned with the following alternative delivery methods:

• special operating agencies, 
• government service agencies,
• partnerships,
• recourse to third parties,
• privatization, and
• the transfer of responsibilities to the provinces.

3.2.1 Special Operating Agencies

Special operating agencies (SOAs) are the first alternative delivery method we examined. These agencies are service delivery units within departments that have been granted increased flexibility with respect to management. In turn, they must attain certain performance levels and results, agreed upon in advance. The Treasury Board remains the employer, and the Public Service Commission is responsible for hiring and promotions. The Passport Office and the Translation Bureau are examples of SOAs. The Official Languages Act continues to apply to special operating agencies.  

3.2.2 Government Service Agencies

Government service agencies, a new type of organization, represent a second type of alternative delivery method. They are legal entities created by special federal legislation that are given specific mandates to implement certain programs or deliver certain services. The first agency of this type, the Canadian Food Inspection Agency (CFIA), was created in 1997. It was followed by the Parks Canada Agency. A bill proposing the creation of a Canadian customs and revenue agency is currently before Parliament. 

As is the case for special operating agencies, the Official Languages Act will apply to government service agencies as it does to any other federal institution. Consequently, the three government service agencies mentioned above will have the same obligations with respect to service to the public, language of work and equitable participation, and with regard to the development and vitality of minority official language communities. However, their status as separate employers exempts them from certain specific official language provisions that the Treasury Board has included in its policies and that apply to the departments and agencies for which it is the employer. These provisions relate to the determination of language requirements for positions, the bilingualism bonus, the staffing of bilingual positions, language training and the language requirements that executives must satisfy. Given their status as separate employers, government service agencies must decide for themselves the manner in which they will manage these issues, subject to applicable general policy statements issued by the Treasury Board.

Although they are separate employers, government service agencies are nevertheless part of the federal public service, like the departments and agencies for which the Treasury Board is the employer, and their employees continue to be paid from public funds.

Therefore, while a government service agency remains part of the public service, it is clearly being called upon to carve out a new identity and create its own corporate culture. We must therefore make sure from the outset that methods are in place to ensure that language rights and support for minority official language communities are effectively incorporated into that culture.

Pursuant to the Canadian Food Inspection Agency Act, the head of the CFIA is responsible for overseeing and directing the work of the Agency. As for the Minister of Agriculture and Agri-food Canada, his responsibility is for the general management of the Agency. The implications of this distribution of roles, with respect to accountability in the area of official languages, remain to be seen.

The Parks Canada Agency Act stipulates that a five-year master plan, an annual report and financial statements with comments by the Auditor General are to be tabled in Parliament every year, and that a report on values and principles related to human resources management must be presented every five years. It also provides for biennial reports on the state of Canada's protected heritage sites and management plans for national historic sites, which will serve as additional instruments of accountability. The Act is nevertheless silent with respect to the way the Agency is to report on how it is meeting its obligations regarding language rights. The absence of such an obligation means that this aspect of the operations of the new organization will have to be monitored.
 

3.2.3 Partnerships

The Framework for Alternative Program Delivery, published by the Treasury Board Secretariat in 1995, defines partnering as follows:

This same document cites the Canada Business Service Centres and the Canadian Tourism Commission as examples of partnerships.
 

3.2.3.1 Canada Business Service Centres (CBSCs)⁵

The Commissioner of Official Languages' study on the effects of government transformations on Canada's official languages program describes the operation of the CBSCs. It notes that the staff of each centre comes from the participating agencies. The Commissioner points out that "the agreement for the establishment of each centre contains a language clause requiring that service be available in both official languages."⁶ He adds, however, that "recent visits to one of the centres in the context of the Commissioner's points of service follow-up revealed that the two-language designation was not being fully respected." Lastly, he expresses a general concern about the capacity of the federal government to ensure that language rights are consistently respected⁷, given the authority-sharing arrangement under which federal and provincial employees alternate as centre managers.

The Task Force is well aware of the risks that the CBSC partnership arrangements entail for language rights and for the support of minority official language communities. These centres were created, and are developing, by bringing together staff from the federal, provincial and private sectors, and having them work in an integrated manner within a new entity that must define efficient and effective working methods and create its own unique corporate culture. To be sure, there is an obligation to deliver services in both official languages, and the Commissioner realizes that the National Secretariat of the CBSCs is aware of the provisions of section 41 of the Official Languages Act. How can we ensure, however, that quality integrated service fully respects language rights in concrete terms when the personnel comes from various levels of government? It is clear that in terms of monitoring, evaluation and accountability, the operation of the CBSCs must be closely supervised so that effective measures are taken to get staff from all origins and at all levels to internalize the concept of respecting language rights and to develop a strongly supportive corporate culture in this respect.
 

3.2.3.2 Canadian Tourism Commission (CTC)⁸

In his study of the effects of the government transformations on the official languages program in Canada, the Commissioner states⁹ that the CTC is a prime example of partnership, based on the principle that the federal government works closely with the Canadian tourism industry, the provinces and the territories to promote Canada as a tourist destination.¹⁰ The Commissioner points out that the CTC is a federal institution that is funded equally by the government and the other partners, and whose decisions are, for the most part, made by the private sector.¹¹

Turning to the linguistic obligations of the CTC, the Commissioner notes that the Commission's Charter and guidelines do not refer to the Official Languages Act or to language rights. The Commissioner points out that, even though the head of the CTC is responsible for "adhering to legislative and government policy requirements,"¹² he does not report to a minister or deputy minister, but rather to a board of directors consisting mostly of people from the private sector.

The Commissioner also considers what the CTC has contributed to support the development and vitality of minority official language communities. He notes the position put forth by the CTC's representatives; that is, that the Commission does not have a mandate to review this aspect of projects, and that its decisions, which are strictly business-oriented, are based on the projects' economic viability and their contribution to the promotion of Canada abroad.

The CTC representative we met during our consultations recognized that the Official Languages Act applies to the CTC's activities but made basically the same arguments.

We believe the CTC's operations need to be carefully examined to ensure that this federal institution is fully aware of all its obligations regarding the two official languages. Conscious, sustained and innovative efforts must be made to reconcile, in a creative and productive manner, the objective of commercial viability and the need to respect language rights.
 

3.2.4 Recourse to Third Parties in Subcontracting Agreements or Contracts for Services

In the Framework for Alternative Program Delivery, subcontracting is defined as a situation where the government entrusts functions that it performed internally, but not the related responsibility, to contractors outside the public service for a given period. 

The contract that the National Capital Commission (NCC) signed with Lafleur de la Capitale is an example of subcontracting with former public servants providing the services. Lafleur de la Capitale provides services that were previously provided by NCC employees. The contract includes a clause stipulating that service to the public must be in both official languages.

Section 25 of the Official Languages Act states that federal institutions must ensure that services offered by third parties on their behalf are available in both official languages, in situations where the federal institutions would themselves have to provide those services in both languages. It follows naturally that, under section 25, federal institutions must ensure that contracts with third parties clearly state that the latter are required to provide services in both official languages.

The Framework for Alternative Program Delivery also indicates that, under contracts for services, the government signs a contract with an external organization for services to be provided by employees other than public servants. The examples given in the Framework are purchases of medical supplies and food or laundry services for federal institutions. In such a situation, when it comes to the application of the Official Languages Act, it is the language of work, rather than service to the public, that is the issue. Under paragraph 36(1)(a) of the Act, federal institutions in the National Capital Region and in regions designated as bilingual with respect to language of work must offer services to their employees in both official languages. This includes services to individuals and central support services. Contracts between federal institutions and third parties must therefore contain provisions to meet this requirement.

When federal institutions sign contracts with third parties, they remain fully accountable. The Task Force feels that these situations should be carefully reviewed to determine the scope of the agreements, the effectiveness of the clauses written into the contracts, and the extent to which federal institutions monitor and evaluate situations to ensure that third parties honour contracts.
 

3.2.5 Privatization

In the Framework for Alternative Program Delivery, privatization is defined as a situation where the government cedes to investors from the private sector its ownership of Crown corporations, corporate holdings or a government service when it is no longer necessary for them to be under federal jurisdiction. This definition needs to be expanded to include cases where new organizations take over activities previously carried out by federal departments. Petro-Canada, Air Canada, many of Canada's major airports, CN and the air navigation system have all been privatized. The government passed specific legislation to deal with these situations. All the provisions of the Official Languages Act apply to Air Canada, CN and NavCan, the corporation that manages Canada's air navigation system. In addition, Parts IV, V, VI, VIII, IX and X of the Act apply to local airport authorities that manage airports that have been leased. When airports are sold, Parts IV, VIII, IX and X apply. In the case of Petro-Canada, official languages obligations are more limited than in the other examples given. This corporation must provide service in both official languages in prescribed circumstances.

Privatizations that impose an obligation to respect all the rights stipulated in the Official Languages Act pose a considerable challenge. Privatized airports and NavCan are non-profit organizations with important, unique roles to play in the community, and at the regional or national level. Air Canada and CN are businesses in a competitive world, and as such they must turn a profit. These companies have business cultures that reflect these circumstances. Language rights obligations must also be integrated into their organizational cultures. This is a different kind of challenge, and in addressing it, it is necessary to consider the circumstances of each case. The approach taken with these companies must be tailored to take their particular circumstances into account. Appropriate monitoring, evaluation and accountability mechanisms must also be developed in such cases.
 

3.2.6 Agreements with the Provinces

The Task Force reviewed the Labour Market Development Agreements concluded with provinces in accordance with section 57 of the Employment Insurance Act and those concluded in accordance with subsection 65(2) of the Contraventions Act.
 

3.2.6.1 Labour Market Development Agreements (LMDAs)

There are eleven agreements at the present time, which fall into two categories: co-management agreements (Newfoundland, Prince Edward Island, Yukon, British Columbia and Nova Scotia) and transfer agreements (Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick and Northwest Territories). 

In the initial phase of "co-management agreements," Human Resources Development Canada (HRDC) is to continue to deliver programs and services in accordance with federal legislation, including the Official Languages Act, within a joint management framework. 

Under transfer agreements, the provincial governments assume full responsibility for the design, delivery and evaluation of "active employment measures", and the functions of the national employment service. These agreements involve the transfer of both human resources and funding for programs. They also include provisions to ensure compliance with paragraph 57(1) d.1) of the Employment Insurance Act concerning the "availability of assistance under the benefits and measures in either official language where there is significant demand."

Language clauses differ from one agreement to the next. Some are more detailed. In Quebec and New Brunswick, for example, programs and services are available "upon request". The following transfer agreements refer to the use of the Official Languages (Communications with and Services to the Public) Regulations as a guide to identifying the extent of the demand, and several call for consultations with the minority official language community: Alberta, Manitoba, Saskatchewan, Northwest Territories.

Manitoba and Saskatchewan have made formal commitments, outside these agreements, to maintain the programs and services for Francophones in the province. 

All agreements contain mechanisms to ensure that compliance is monitored and evaluated. However, the Commissioner of Official Languages does not have jurisdiction over transfer agreements. HRDC has developed a generic evaluation framework, from which joint evaluation frameworks for all provinces, except Quebec, have been developed. All the evaluation frameworks include questions on official languages. HRDC intends to develop a pan-Canadian evaluation framework that includes a section to measure the effects of transfer agreements on minority official language communities. The Minister of Human Resources Development is also supposed to report to Parliament on the effects of the reforms, including these agreements. The 1997-98 report will include what HRDC has accomplished and will serve as a basis of comparison for the following years. There will be a section relating to agreements that have been implemented.

In each province, there is an agreement management body consisting of federal and provincial public servants who deal with issues related to the implementation and management of the agreement.

The Task Force is fully aware that the LMDAs represent one of the most important transformations undertaken by the Government of Canada in the last few years.

In addition, we have taken note of the criticism of these agreements voiced by the Commissioner of Official Languages in his study on the effects of government transformations on Canada's official languages program, where he refers to an inquiry that he conducted into the LMDAs.

The Task Force noted in particular that, as a result of the LMDAs, the federal government no longer has important tools it once had to support the development and vitality of minority official language communities, and the LMDAs do not contain any commitments by the provinces in this regard.

The Task Force also noted that the LMDAs do not contain a redress mechanism that applies specifically to official languages and that would effectively guarantee access and corrective measures. Although the evaluation frameworks developed by HRDC in conjunction with the provinces deal with official languages, would it not have been preferable to include accountability and evaluation measures in the LMDAs with respect to official languages?

The LMDAs are important because of their potential impact on minority official language communities. There should be a means of identifying the benefits the communities enjoyed before the LMDAs went into effect, determining the extent to which access to those benefits has been reduced and, if necessary, applying compensatory measures.

Since the agreements include evaluation clauses covering the first three years, there is an opportunity for the government to make the agreements more specific as regards the language rights that must be respected. The Task Force believes it is necessary to eliminate inequalities in the treatment of language rights.
 

3.2.6.2 Agreements Concluded under Subsection 65(2) of the Contraventions Act

The major objectives of the Contraventions Act are to decriminalize some 1600 contraventions that formerly fell under the Criminal Code, to lighten the workload of the courts and improve the enforcement of federal legislation. The representations made by the Department of Justice and the Association des juristes d'expression française de l'Ontario (AJEFO) enlightened us on the official languages issues raised by the agreements concluded with the provinces under subsection 65(2) of the Act.

We noted that there was a difference of opinion with respect to the effectiveness of the instruments the Department of Justice intends to use to ensure that protection in the area of official languages is equivalent to that accorded under the Criminal Code. We also noted that corrective measures had been required to take into account the fact that Ontario delegated to the municipalities the powers it had under the agreement concluded pursuant to subsection 65(2) of the Act. As a result of the action taken by the AJEFO, Ontario amended its Provincial Offences Act to take into account the language rights of Francophones. The AJEFO also insisted on the fact that consultations should be held from the outset in cases where a transfer of responsibilities might affect language rights.
 

3.3 General Observations

The federal government, which indisputably bears prime responsibility for safeguarding and promoting Canada's linguistic duality, has missed a fine opportunity to help foster this duality through the transformations over which it has presided. To be sure, when it comes to government transformations, the government has shown a certain dynamism and a sense of innovation, and it has important achievements to its credit. However, in reviewing the language situation, the Task Force has concluded that the government has not shown the same leadership and creativity, and has not been able to fully safeguard language rights. 

We conclude, as did the Commissioner of Official Languages, that government transformations have resulted in a cumulative weakening of language rights in terms of service to the public, language of work, equitable participation and support for the development of minority official language communities. 

The federal government must take measures to remedy the situation. The proposed changes to the Framework for Alternative Program Delivery are one such measure. It is also important for the federal government to be prepared to carry out initiatives to maintain its presence in Canadian society by other means. 

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4 In keeping with the Treasury Board's new role, the Framework does not present any models to be followed; rather it defines strategies for departments searching for the best way to deliver programs, activities, services and functions in an environment that is client based, financially viable and innovative. The Framework sets out principles and criteria in order to determine if the different ways of implementing programs achieve government objectives, and describes these ways and related provisions regarding accountability, and financial and human resources management. The Framework does not mention any central mechanism for studying proposed methods of program delivery.    [ Return ]

5 In the early 1990s, the Canadian government decided to combine access to all its services for business owners within integrated service units, the Canada Business Service Centres. The initiative was begun in 1992 with the opening of offices in Edmonton, Halifax and Winnipeg. After an evaluation some 18 months later, discussions between federal and provincial officials gave rise to the idea of a centre integrating as many business services as possible. The decision to follow through with this idea led to the conclusion of public partnering agreements between federal and provincial agencies, with the participation of the private sector and non-governmental organizations in certain cases. Each province and territory now has CBSCs in its major cities, and these "single windows" of business services operate in collaboration with one another, within a framework that may justifiably be viewed as a Canada-wide service network.    [ Return ]

6 Commissioner of Official Languages, Government Transformations: The Impact on Canada's Official Languages Program, 1998, p.13.    [ Return ]

7 Ibid., p. 13.    [ Return ]

8 An order in council issued in January 1995 launched the formation of the new Canadian Tourism Commission by creating a committee with 26 members. The members of this committee (hereinafter called the Board) assumed decision-making responsibilities similar to those of a board of directors. In addition to a president appointed by order in council, the committee consists of members appointed by the Minister of Industry. They include a maximum of nine from the private sector, a maximum of seven operators of tourism companies representative of the regions, a maximum of seven provincial or territorial deputy ministers responsible for tourism, and the Deputy Minister of Industry Canada. The Board is supported by a special operating agency (SOA), which is headed by a director who is a member of the Board and reports directly to it, and helps the CTC fulfil its mandate in the area of tourism.    [ Return ]

9 Commissioner of Official Languages,
op. cit., p. 12.    [ Return ]

10 The Board operates in partnership with a number of committees consisting of groups of stakeholders that are chaired by representatives of the private sector and are responsible for developing and implementing the CTC's programs. The SOA/Canadian Tourism Commission, for its part, provides its programs and services to the Canadian tourism industry under the direction of its Board.    [ Return ]

11 A CTC document called its Charter (August 1995) refers to an announcement by the Prime Minister to the effect that, within this new framework, the core funding for promotional activities would be set at $50 million for the 1995-96 year and the following years, and that the program would be reviewed again three years after the creation of the CTC. This document indicates that, in addition to federal funding, the partners will also earmark funds to finance joint activities. A total of $31 million were expected for 1995-96, with the medium-term objective of increasing the funding from the partners to $50 million, producing a joint budget of $100 million for marketing.    [ Return ]

12 Commissioner of Official Languages,
op. cit., p. 12.     [ Return ]

 

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