News: General Interest News

Happy Holidays and a Wonderful New Year 2013!

Joyeuses Fêtes ! | Happy Holidays!

Allow me to wish you Happy Holidays and a marvellous New Year 2013, filled with health, happiness and love!

My blog will be on hiatus for the holidays but will return in January 2013.

Merger of a Designated Agency with a Non-Designated Agency

As part of my series of blogs about the designation of agencies, I am today emphasizing the question of merger of a designated agency with a non-designated agency.

As I mention in my 2011-2012 Annual Report, when a designated agency merges with a non-designated agency, the services and programs that were the object of the designation must not undergo any change in terms of the delivery of French-language services.

The supervising ministry must submit an application to the Office of Francophone Affairs to amend the regulation in order to better reflect the name of the new, merged agency and to update the directory of services provided, as applicable. Therefore, in my view, no merger between a designated agency and a non-designated institution should be considered if the new facility created by that merger does not maintain all of the services and programs that were originally designated.

In the case of Cornwall Community Hospital, which was created out of the merger of two health care facilities, including Hotel Dieu Hospital, that is precisely what happened. And given the fact that Hotel Dieu Hospital was designated under the French Language Services Act, the new medical facility was then obliged to also apply for designation under the Act. Having acted any differently would have been disastrous for the Francophone community and, more importantly, illegal under the Act and unconstitutional according to the unwritten principles of the Canadian Constitution, as was illustrated in the Montfort court case.

After the Holidays, I am convinced you will appreciate to read comments the Commissioner’s Office received from different agencies that chose to ask for designation and were then given status. Beyond benefits and criteria, it is interesting to hear what the Francophone community has to say.

Addressing Complaints Relating to Designated Agencies

As part of my series of blog posts about designated agencies, I am today emphasising how complaints should be addressed.

As I explain in my 2011-2012 Annual Report, designated agencies are required to provide high-quality French-language services just like ministries and government agencies, and they are required to have policies and procedures to address complaints about the delivery of these services.

For example, designated agencies in the health sector are, under the terms of their Service Accountability Agreements with the Local Health Integration Networks (LHINs), required to submit a French-language services report to the LHINs, in order to assess the progress being made in the implementation of French-language services and to identify any possible gaps. However, this report should also ideally be shared with the new French-language health planning entities and made available to the public.

I support this approach that holds designated agencies accountable, and recommend that citizens make their complaints directly to those agencies. However, complaints can also be presented to the Commissioner’s Office, which may require the institution named in the complaint to answer questions of a more systemic nature. In fact, once it has been designated, the agency falls under the authority of the Commissioner, who may conduct an investigation in the event of a failure to comply with the requirements of the French Language Services Act (FLSA) regarding the availability and accessibility of French-language services.

But with the current process, these service providers are not subject to any monitoring or ongoing government assessment. Of course, some of the agencies have been designated a long time ago. Let’s take the example of a government agency that would have been designated 20 years ago. Is its current staff even aware that beyond the Office of the French Language Services Commissioner, its clients can file complaints directly to this designated agency should they want to in case of any perceived failure to comply with the FLSA? Are they still in a position to receive and manage these complaints? Some are and some aren’t.

This is precisely why I recommended the Minister Responsible for Francophone Affairs to ensure that designated agencies equip themselves with a mechanism for resolving disputes that is made available to the users of services.

Next week, I will go over the merger of a designated agency with a non-designated agency in detail. What happens when such an operation goes through and what are the obligations under the French Language Services Act? Do not miss this blog post!

Let’s Talk Designated Agencies

As I emphasize in my 2011-2012 Annual Report, the designation of an agency means a commitment and formal recognition of its ability to provide French-language services. It is not a goal in and of itself, but rather a means of guaranteeing the active and ongoing provision of French-language services in the field, in order to meet the specific needs of the population being served.

A designated agency or program provides its supplier with legal immunity that protects it from changes in the economic and political climate. Montfort Hospital is the most eloquent example of this advantage: it was able to avoid being shut down and broken up precisely because of its designated status. That is the reason why the designation of agencies is excessively important.

Hence, that brought me to take the decision to post a blog relating to the designation of government agencies every week this month of December. I am starting today with a blog post on the representation of Francophones on boards of directors and post-designation assessment. I will then continue in the following weeks with posts on how to address complaints and on the merger of a designated agency with a non-designated agency. I will conclude this series of blog posts by giving the opportunity to some agencies to share with you why they have chosen to ask for designation and also by letting you know the government’s response to my recommendation.

Firstly, many agencies have not been subject to any post-designation assessment to ensure their compliance with the conditions arising from their status as providers of French-language services.

It is certainly true that the government encourages designated agencies to submit tri-annual self-evaluation reports to the Office of Francophone Affairs, in order to ensure that they are still meeting their designation criteria and integrating French-language services in the development of their programs and services. However, very few agencies actually submit these reports on their own initiative and such reports are seldom requested by ministries.

This task also may be difficult, given the fact that the ministries do not always use the same evaluation chart or criteria for designation, as has been mentioned previously. This lack of a shared interpretation should also be addressed.

The criterion for the representation of Francophones on the board of directors and executive committees of designated agencies is a perfect illustration of this situation.

Indeed, once they have their designation certificate, agencies will sometimes use the excuse of flexibility in order to avoid their obligation to provide Francophone representation. Unfortunately, this can result in an underrepresentation of Francophones on the boards of directors of agencies that are located in regions with a high concentration of Francophones.

Such a situation was in fact brought to my attention in the case of a designated hospital located in the Eastern region, following a significant change in the administrative bylaws governing its board of directors. The hospital in question was not complying with the Ministry of Health and Long-Term Care’s criterion for Francophone representation that specified that the number of Francophones on its board of directors should be proportional to their demographic weight in that region.

Yet, the ministry had informed the Commissioner’s Office that the hospital had been assessed in 2005, and that, at the time, the Ministry was satisfied that it met the criteria for Francophone representation on its board of directors. This particular case is more than a simple anecdote. In fact, it highlights the lack of an ongoing and mandatory process for assessing designated agencies. This clearly illustrates why it is important to make this process and these criteria formal and consistent.

This is what brought me to recommend to the Minister Responsible for Francophone Affairs that a mandatory directive on the designation process for agencies be established in compliance with the French Language Services Act. I recommended that this directive be implemented by 2013-2014 and include consistent designation criteria that, in particular, provide for a minimum representation of Francophones on boards of directors and executives.

As part of this recommendation, I also highlighted the importance of a mandatory and independent assessment, every three years, based on all of the designation criteria, including criteria dealing with governance. This assessment should also include corrective measures, when necessary.

I will come back to you next week to cover another aspect of my recommendation to the Minister relating to the designated agencies.

Independence of the Commissioner: for Administrative Independence

Today, I am concluding my series of blogs on the independence of the Commissioner by addressing this question from an administrative point of view.

The majority of the population is not aware that on an administrative level, the Office and its Commissioner, like the Office of Francophone Affairs, are required to change ministry, based on the other responsibilities of the Minister Responsible for Francophone Affairs.

As a result, when the Minister Responsible for Francophone Affairs was also serving as Minister of Community and Social Services, the Office and the Commissioner were administratively linked to this ministry for matters related to human resources, IT services, support for the Freedom of Information and Protection of Privacy Act, and numerous other requirements related to the daily operations of an office. Over the years, it has therefore developed connections, contacts and operating methods which facilitate the management of day-to-day activities, especially for an office as small as the Office of the French Language Services Commissioner, which is often somewhat forgotten within the large ministries.

In December 2011, when the new cabinet was sworn in after the election, the Minister Responsible for Francophone Affairs remained the same but also became the Minister of Community Safety and Correctional Services, dropping her responsibilities as the Minister of Community and Social Services.

Consequently, with just one move, both the Office of Francophone Affairs and the Office of the French Language Services Commissioner were required to change their line Ministry… and once again start everything from zero. This was simply a repetition of a previous situation when the minister responsible was also serving as the Minister of Culture.

Over the last weeks, I have been addressing the importance of the independence of the Commissioner for reasons of political non-interference, involvement of members of Parliament, independence in legal terms, financial accountability and ability to act and administrative independence.

Well, for all of these reasons, I have recommended to the Minister Responsible for Francophone Affairs that an amendment to the French Language Services Act be introduced by March 31, 2013, specifying that the Commissioner will report directly to the Legislative Assembly. You can refer to this recommendation in my 2011-2012 Annual Report.

I obviously wish to get back to you as soon as possible with good news relating to this matter. However, I am still waiting for the government’s response to this recommendation.

In the meantime, if you would like to know more about this recommendation, the interview I recently gave to Gisèle Quenneville for TFO’s Carte de visite has been uploaded to Youtube.

In conclusion of this series of blog posts, I wish to share this quote taken from the Office of the Commissioner of Official Languages for New Brunswick’s 2011-2012 Annual Report entitled From words to actions officially released on October 11, 2012: “The Commissioner [of Official Languages for New-Brunswick] is an officer of the Legislative Assembly and is independent of the government.” I have nothing more to say!

Independence of the Commissioner: for Financial Accountability and Ability to Act

This week, I am addressing the Office of the Commissioner’s financial accountability and ability to act as part of my series of blogs relating to the independence of the Commissioner.

As I mention in my 2011-2012 Annual Report, whenever public administration is subjected to across-the-board cuts, the budget of the Office of the French Language Services Commissioner is not spared: the Commissioner’s Office is treated like any other provincial agency without any regard for the unique nature of its mandate or the modest size of its team (only six individuals, including the Commissioner).

Moreover, the Commissioner’s Office is financially dependent on the Office of Francophone Affairs. It may perhaps be a well-kept secret, but basically, the funds allocated to the Office of the French Language Services Commissioner constitute no more than a line item in the budget of the Office of Francophone Affairs.

In addition, the funding provided to the Commissioner’s Office is far from extravagant at slightly less than $900,000 annually. In concrete terms, this means that any reduction in expenses – no matter how small – has a very real impact. This may mean cancelling one or more investigative reports or eliminating a special investigation which the Commissioner’s Office would no longer have the means to undertake.

However, even more worrisome is the fact that the Commissioner’s Office is not protected from the will of a government which, for example, may want to cut off its financial lifeline and undermine its ability to carry out its mandate.

If the Commissioner’s Office were to report to the Legislative Assembly, it could plead its own case during periods of austerity measures and its funding would be protected from ill-timed and partisan decisions. Moreover, the Office would not have to obtain funding through another government agency, which could only facilitate its ability to act and to be accountable for management of public funds.

I will be concluding my series of blogs relating to the independence of the Commissioner next week. Don’t miss the last blog!