Parlez-vous français?: Federal government’s “strengthened” Official Languages Act comes with robust language requirements for private federal businesses and new enforcement powers

On June 15, 2021, Bill C-32, which aims to amend the Official Languages Act (OLA), was tabled for a first reading before the House of Commons. The purpose of Bill C-32 is reflected in its alternative title, an Act for the Substantive Equality of French and English and the Strengthening of the Official Languages Act. The government’s news release announces that substantive equality would be achieved by putting particular emphasis on the protection and promotion of the French language, which is said to need “additional support” and “requires a special approach.”

Overall, the amendments proposed in Bill C-32 appear to have three main objectives: (i) protect and promote the French language in and outside Quebec; (ii) impose language requirements on federally-regulated private businesses for the first time; and (iii) grant additional powers to the Commissioner of Official Languages (Commissioner). Here we focus on those amendments that are more likely to affect private businesses, namely the language requirements set out under the proposed new Part VII.1 and those relating to the Commissioner’s new powers. 

Language requirements for federally-regulated private businesses

Bill C-32 proposes, for the first time, to institute language requirements for federally-regulated private businesses under a new Part VII.1 of the OLA. This Part would apply to most federal works, undertakings or businesses governed by the Canada Labour Code and employing a minimum number of employees to be fixed by regulation at a later time.

If adopted, the proposed amendments could impose the following requirements on federally-regulated private businesses operating in Quebec or in “regions with a strong francophone presence”:

• Ensure that consumers in Quebec or regions with a strong francophone presence may communicate with them and receive services from them in French. 
• Allow employees in Quebec or regions with a strong francophone presence to work and be supervised in French. This will include the right to receive communications and documents in French and to use French work instruments and computer systems. Where communications or documents are made in both official languages, the use of French must at least be equivalent to the use of English.
• Take certain positive steps to promote the use of French in Quebec or regions with a strong francophone presence. Businesses must notify employees of the OLA’s application, inform them of their rights and available remedies, and establish a committee responsible for the use of French.
• Prohibit any adverse treatment of employees in Quebec or regions with a strong francophone presence because of their grasp of a language other than French or their exercise of a language right provided under the Act.

Should these be adopted, the requirements that Bill C-32 proposes to impose on private businesses would largely be subject to the Commissioner’s investigatory and enforcement powers. In the case of requirements concerning employees, the Commissioner would also have the power to refer a complaint to the Canada Industrial Relations Board. 

These new requirements would first come into effect in Quebec if Bill C-32 becomes law. Two years later, they would extend to regions with a strong francophone presence. 

The Commissioner’s expanded powers

Under the proposed new powers relating to investigations, the Commissioner would have more latitude in deciding to refuse or cease to investigate a complaint. The Commissioner would be able to do so if, for example, a compliance agreement has been entered into with the federal institution or federally-regulated private business at issue, or if the institution or private business has taken corrective measures to resolve the complaint. 

Businesses that could become subject to the OLA pursuant to Bill C-32 should be mindful of the Commissioner’s proposed new powers to make public any summary findings or recommendations relating to an investigation. More importantly, businesses should be aware of the Commissioner’s proposed new power to make orders and file these with the Federal Court. Under proposed new sections 64.5 and 64.6 of the OLA, the Commissioner would have the power to make an order relating to a complaint made under Part IV (services to the public) or Part V (language of work) of the OLA. If the Commissioner forms the view that such an order has not been complied with, they would be able to file it with the Federal Court, at which point it could be enforced as an order of the Court. These powers do not currently exist under the OLA. 

Compliance agreements

Bill C-32 proposes to introduce the concept of compliance agreements to the OLA. According to proposed new provisions under section 64, the Commissioner would have the power, either during or after an investigation, to enter into a compliance agreement with the federal institution or federally-regulated private business at issue, as long as there are reasonable grounds to believe that the institution or business has contravened the OLA. 

Once a compliance agreement has been entered into, the Commissioner would no longer be able to make an order requiring specific actions (or file it with the Federal Court), pursuant to its proposed new powers. Moreover, neither the Commissioner nor the complainant (if the complainant is a party to the compliance agreement) would be able to make an application before the Federal Court, and they would have to apply to the Court for the suspension of any pending applications relating to matters covered by the compliance agreement.

Similarly, if the Commissioner was satisfied that the federal institution or federally-regulated private business has complied with the compliance agreement, the Commissioner would have to withdraw any related applications pending before the Federal Court. If the complainant is a party to the compliance agreement, they would also have to do the same. If the Commissioner deemed that the compliance agreement has not been complied with, they could apply to the Federal Court for an order requiring the federal institution or federally-regulated private business to comply with the agreement, for a remedy on behalf of the complainant, or for the reinstatement of pending proceedings. 

Takeaways

Although Bill C-32 has just been tabled for first reading and may not be adopted in its present form or at all, some of the proposed amendments to the OLA contained therein could bring about some important changes for certain businesses. 

Federally-regulated businesses should take note of the proposed changes to the OLA that would require, for the first time, compliance with official language requirements vis-à-vis consumers and employees. Affected businesses, both in Quebec, and in the rest of Canada, would need to ensure that they would be able to comply with these new requirements should they come into force. That said, several businesses may not yet know if Part VII.1 would apply to them, even if it is adopted: further guidance as to the definition of a “strong francophone presence” and the threshold number of employees is required from the government in this regard.