Thank you very much, Mr. Chair.
I'd like to start off by saying what an honour it is to appear before the committee. I've always appreciated how committed the committee members are to defending official languages.
I'm no longer the Commissioner of Official Languages and I have no intention of speaking as though I still am. I have tremendous respect for both of my successors, and I would never want to speak in Raymond Théberge's stead. I have great regard for him.
Nevertheless, my 10 years of experience as commissioner may provide the committee with some insight with respect to modernizing the act.
My comments will focus on issues related to part VII of the act.
When I became commissioner in 2006, part VII of the act had been amended only a few months before. Rather than push for regulations to govern the application of the new part VII, I felt that it would be best to allow federal institutions to innovate and develop their own practices regarding “positive measures” for the growth and development of minority language communities.
Indeed, many institutions took their responsibilities seriously and found imaginative and innovative ways to take positive measures. These ranged from participation and support for community activities to the provision of office space for community organizations in exchange for French conversation classes. The problems emerged when federal institutions did not, in our view, interpret those obligations in a satisfactory fashion. The first was the decision by the newly elected Progressive Conservative government—made between the announcement of my nomination and the confirmation of my appointment in 2006—to abolish the court challenges program. The court action launched by the Fédération des communautés francophones et acadienne, which I supported, resulted in an out of court settlement that resulted in the creation of the language rights support program.
The second was the elimination of nearly all local programming at CBEF Windsor, a French-language community radio station. The CRTC agreed with my argument and required that the programming be restored as a condition of renewing Radio-Canada's licence. The trial judge accepted my argument that Radio-Canada was subject to obligations under part VII of the act, but the decision was struck down on appeal on other grounds. Since then, a modus vivendi has been reached between Radio-Canada and the commissioner's office.
The last is the Federal Court decision rendered by the Honourable Judge Gascon, on May 23, 2018, in Fédération des francophones de la Colombie-Britannique v. Canada (Employment and Social Development).
As you know—and the judge noted this—the Fédération des francophones de la Colombie-Britannique argued that the federal department and the Canada Employment Insurance Commission had failed to fulfill their language obligations to the francophone linguistic minority when they entered into and implemented a transfer payment agreement with the provincial government. The agreement governed the administration of employment support measures to help workers return to the labour market.
As the judge noted, I intervened in the proceedings to argue how the sections of the Official Languages Act at issue in the case should be interpreted, in my view.
The decision is being appealed, and I would refer you to the arguments laid out by Commissioner Théberge's legal team in the memorandum of fact and law of the Commissioner of Official Languages of Canada submitted to the Federal Court of Appeal and posted on the website of the Office of the Commissioner of Official Languages.
Nevertheless, I think that, as lawmakers, you should take note of Judge Gascon's analysis. In his comprehensive decision—105 pages in English and 146 pages in French—he carefully compared the terms used, weighing their meaning in English and in French throughout the act.
Paragraph 213 of the decision reads as follows:
In short, even within the OLA itself, Parliament wanted the concept of “measures” to be one of variable geometry.
However, when, in the same Act, Parliament uses the word “measures” sometimes with the article “les” [in the French text], sometimes with the qualifiers “possible”, “appropriate” or “necessary”, sometimes with the adjective “all”, one cannot ignore the fact that in subsection 41(2) Parliament was content to speak of “positive measures” to be taken by federal institutions, with the indefinite article “des” and the qualifier “positives” [in the French text], without providing further clarification or restrictions. Parliament does not say “necessary measures”; it does not say “appropriate measures”; it does not say “all possible measures.” Clearly, the text of the Act reveals that the expression “positive measures” does not mean the same thing as these other types of measures. It clearly does not have the same attributes of comprehensiveness, necessity, precision or sufficiency found elsewhere in the OLA.
You can see from this the degree to which the judge went through a word-by-word analysis of the articles and verb tenses that were used. It is nothing if not meticulous, and it came as a bit of a shock to both the Office of the Commissioner of Official Languages and the other intervenors.
I will not go through all of Judge Gascon's extremely detailed arguments, except to note that in paragraph 216 he states flatly, “In short, section 41 does not impose specific and particular duties on federal institutions.” In his conclusion, in paragraph 293, he states that the “scope of the duty contained in section 41 is hamstrung by the absence of regulations” and ”the remedies sought by the FFCB and the Commissioner are not supported in the current Act, as drafted, structured and implemented.”
As I say, the decision is being appealed at the Federal Court of Appeal by the commissioner. However, as legislators you are under no obligation to wait for the outcome of the appeal process. The courts interpret the intention of the legislator as expressed in legislation, and it is for you to make your intention clear.
Judge Gascon has challenged me, my predecessors and successors, and you, as legislators, arguing that our hopes and expectations for part VII were more a matter of wishful thinking than binding obligations.
While I hope that the appeal courts disagree, agree with Mr. Théberge, and overturn the Federal Court's decision, you are in a position to respond by ensuring that in modernizing the act you make your intentions as legislators clear and erase any incoherence or ambiguity, so that the obligations to take positive measures are binding and clear.
I'll limit my remarks to those and will not repeat the points that I made before the committee in the other place. However, I am happy to answer any questions you may have.
It is so important, first because it was an innovation. For once, in an act, there was a rare obligation for positive measures, without the positive measures being clearly defined, either by regulation or in the act itself.
Often, the successes of Part VII were achieved in regions, where departmental directors were located. They studied that obligation and asked themselves what they could do for the official language minority community in their region.
There were often consultations. Fisheries and Oceans Canada participated in celebrations in Gaspé. In Alberta, Parks Canada provided an office for local francophone communities if, in exchange, they would provide French conversation classes for their employees. It was a win-win, enabling the department to be more engaged with the local community. The president of VIA Rail became aware of the obligation, but he did not see which community he could consult. He assured the FCFA that he took the obligation seriously. He did not see which minority community VIA Rail could assist, but the FCFA suggested a contribution to people's travel to the organization's annual meeting.
All the successes, therefore, came as the result of consultations and of a greater commitment from the departments to the communities, often at a very local level.
I used to say to myself that this is not the kind of success that one could imagine coming from a deputy minister's office, that is to say, a directive addressed to all a department's regional offices. It comes instead from the imagination, the innovation and the openness of spirit of the federal employees on site.
There was the power to compel testimony under oath, for example, that a commissioner, unlike other officers of Parliament, has never used. In the special report on Air Canada in 2016, we recognized the range of the powers of other officers of Parliament.
I do not know whether this is mentioned in the report, but we learned through the grapevine that some officers of Parliament who often use the power to compel sworn testimony, do so automatically at the request, or the preference, of the institutions. Some of them say that it is better for them that testimony is compelled. Then they just have to say that they had no choice. My impression, with the departments I dealt with, was that they were people of good will.
One organization was an exception, That was clear when people from Air Canada testified before your committee. Air Canada's position is that they are competing with other airlines that do not have the same obligations, and that it is not fair. Air Canada has the obligation; Westjet, as an example, does not. There is some resistance with Air Canada, which was sometimes reflected in our reports.
When I think about it, I am not sure whether fining Air Canada $25,000, for example, for this or that incident would be worth it. It is the cost of two business class tickets to Beijing. It is peanuts for Air Canada. It would make the news, but I don't know whether it is an effective way to change behaviour.
The FCFA suggested that all the penalties could be used to set up a fund for language training. But a fund of that kind could be set up without imposing fines. The idea of fining Public Services and Procurement Canada because a construction site does not have a bilingual sign is not very useful. What use is it for one federal institution to fine another federal institution? Is it really going to change behaviour?
I am not sure.
Thank you for this opportunity to appear before you today on the matter of official languages.
I'd like to begin by briefly describing the role and mandate of the Administrative Tribunals Support Service of Canada, or ATSSC, which was established on November 1, 2014, with the coming into force of the ATSSC Act.
The ATSSC is responsible for providing support services and facilities to 11 federal administrative tribunals by way of a single integrated organization. The goal in creating our organization in 2014 was to pull the resources of several smaller tribunals into a larger organization, the ATSSC. This would allow the ATSSC to better leverage the resources at its disposal to help meet the needs that have long been identified by tribunals, which they did not have the capacity to address within their own limited budgets and staff complement.
Our purpose is to improve capacity to meet the needs of the tribunals, achieve efficiencies through economies of scale and improve access to justice for Canadians.
The 11 tribunals supported by the ATSSC represent a portion of the nearly 30 federal administrative tribunals and are generally small organizations that vary in size from approximately three to 100 full-time and part-time members. Their mandates are varied, spanning a vast array of societal activity from commerce to the administration of monetary penalties in certain sectors, to international trade, human and indigenous rights, social programs, labour relations, protection of whistle-blowers and the protection of cultural assets.
The ATSSC also supports the National Joint Council, which is a forum for co-development, consultation and information between the Treasury Board of Canada in its role as an employer and public service bargaining agents.
The Administrative Tribunals Support Service of Canada, or ATSSC, reports to Parliament through the Minister of Justice and Attorney General, but it operates at arm's length from the Department of Justice.
In terms of our work, we provide the specialized services required by each of the tribunals to support the registry, research and analysis, legal and other mandate-specific or case-specific activities.
As well, we provide the tribunals with internal services, such as human resources, financial services, information management and technology, accommodations, security, planning and communications, and all support services.
On a day-to-day basis, tribunal members work with ATSSC employees who assist them with case files, editing decisions, making travel arrangements for hearings, and a number of other tasks required by the tribunal members in the course of their work.
The chairpersons of the 11 tribunals served by the ATSSC have supervision over, and direction of, the work of their respective tribunals.
By providing support services and facilities, the ATSSC enables the tribunals to exercise their individual powers and perform their unique duties and functions in accordance with their respective legislation, rules and regulations.
We actively work with the tribunals to identify improvements to the systems, services and processes the ATSSC provides to them. We are committed to ensuring that appropriate resources are available to support the tribunals' operational processes and caseload management.
Our workforce includes approximately 600 employees, the majority of whom are located in the national capital region. The organization also supports approximately 200 Governor in Council appointees who are the members of the 11 administrative tribunals.
The year 2019 marks an important milestone for the ATSSC as the organization is celebrating its fifth year in operation.
Looking ahead, the ATSSC is focused on providing the best possible service to the tribunals that we serve by championing a culture of service excellence, innovation and continuous improvement. In particular, the ATSSC will work to improve the digital capabilities of the tribunals by establishing new and improving existing case management systems. We will also continue to grow and sustain a healthy and respectful workplace that supports personal well-being, career development and continuous learning for our employees. Additionally, we will continue to assess and hone our service standards and delivery models to achieve even greater efficiencies in our business practices while preserving our commitment to excellence.
Now that I have provided a brief overview of the ATSSC, I would like to share some information about tribunal models and some general cost considerations related to operating administrative tribunals.
As I mentioned previously, the mandates of the 11 administrative tribunals supported by the ATSSC vary widely, from those that handle the appeals of administrative monetary penalties, to others that deal with matters directed to them by a referring body—the Canadian Human Rights Tribunal, for example, which hears complaints referred to it by the Canadian Human Rights Commission.
Each tribunal has a unique mandate and fulfils very specific purposes. For example, the Canadian Cultural Property and Export Review Board reviews applications for certification of Canadian cultural property. The Specific Claims Tribunal hears cases on indigenous land claims. Both the Canadian Industrial Relations Board and the Federal Public Sector Labour Relations and Employment Board deal with a variety of labour relations matters.
As such, the ATSSC must provide resources that correspond to the nature, scope and complexity of cases dealt with by each tribunal, as well as each tribunal's caseload. A number of tribunals the ATSSC supports have caseloads that surpass several thousand cases per year, such as, for example, the Social Security Tribunal and the Federal Public Sector Labour Relations and Employment Board.
Also, cases come before tribunals in various ways, for example through applications, complaints, appeals and references, or they may be referred by another body. Matters are adjudicated, and in some cases, there is also a focus on providing mediation assistance at all stages of a proceeding.
Given these considerations, the costs to operate an administrative tribunal can vary greatly depending upon the tribunal's prescribed mandate and expected caseload. There are also costs for back office functions such as finance, human resources, etc., or case management system expenditures and a number of different support services that the tribunals need from time to time.
In reflection of these factors, the annual budgets of the administrative tribunals the ATSSC supports range from approximately $225,000 a year to up to about $28 million a year.
In terms of overall operating expenditures for the ATSSC, our total main estimates for 2019-20 are $92 million. These funds support the wide-ranging services that the ATSSC provides to the 11 tribunals. Approximately $68 million, or 74%, of these funds are dedicated to the core responsibilities that directly support the tribunal mandates, while the remaining $24 million, or 26%, is allotted to internal service operations.
The ATSSC closely monitors its budget to ensure that we are able to meet the needs of the tribunals. This includes monitoring emerging trends to determine their potential impact on tribunal caseloads, monitoring legislative changes to assess their impact, and ensuring that budget planning and allocations have built-in flexibility to appropriately allocate the resources if and where required.
Mr. Chair, that concludes my remarks. I will be happy to answer questions from the members of the committee.
That was a good question, Mr. Clarke.
Welcome, Ms. Pelletier.
By the way, Ms. Pelletier is a former colleague from the Faculty of Law at the Université de Moncton. Actually, she studied with my wife. I studied law with Ms. Pelletier's older sister.
I am pleased to see you back here after all these years.
You heard the questions I asked the commissioner.
Earlier, I mentioned the administrative tribunal in Wales. We heard from Meri Huws as a witness. The position of Commissioner of Official Languages for Wales was created only seven years ago. Unless I am mistaken, in seven years, only 13 of its decisions have been challenged and none of them have been overturned by the administrative tribunal in question. It's unbelievable. This leads me to say that the legislation in Wales in this case must be extremely specific and not subject to interpretation for there to be so few complaints. In addition, the judgments must be very clear.
I will continue along the same lines as my friend Mr. Clarke.
A parallel has often been drawn with the Canadian Human Rights Tribunal, which is an administrative tribunal. I am not very familiar with the Canadian Human Rights Act. I am more familiar with the New Brunswick Human Rights Act, which must be similar. The act is very proactive in providing investigative powers and the power to ask an employer to remedy a situation. Those powers are fairly coercive, but that is why there were only 1,100 complaints across Canada, in all languages and provinces combined. That's not a lot.
Ms. Pelletier, is this small number of complaints across Canada the result of the fact that the Canadian Human Rights Act is not ambiguous and less open to interpretation than the Official Languages Act?