1.8.1. Right to French-language services
Legislators included two obligations in the French Language Services Act with respect to the right to French-language services. Section 5 clearly states that a citizen has the right to use French to communicate with the government and to receive services from the government. These two components, communication and services, are clear and straightforward obligations that apply to both the government and its agencies.
For example, a man who took his case to the province’s Human Rights Tribunal told the Ministry of Community and Social Services over and over again that his preferred language of communication was French. The Ministry sent him a document that it said was bilingual. However, at the bottom of the document, it was clearly noted that there was no French version. The Ministry quickly corrected the situation, ensuring that it would not happen again.
18.104.22.168. Communication with the public
The concept of communication in its broadest sense is central to the right to services in French under section 5 of the Act. It is this context that we need to reanalyze the Communications in French Directive, which the government introduced in 2010. This directive, mandatory for all government ministries and agencies, accompanied by guidelines that are also mandatory, is intended to support the government’s commitment to forge closer relations with the Francophone community and ultimately to satisfy or even exceed the requirements of the Act.
However, the Commissioner notes that since the adoption of the directive and its guidelines, and despite the recommendations arising from his investigation report on the H1N1 flyer, many failures have occurred and are still occurring.22
22.214.171.124. Government advertising
Unlike the federal Official Languages Act, the French Language Services Act has no provisions spelling out requirements for government advertising. In response to complaints received during the year, the Commissioner launched an investigation. The purpose is to determine whether the Communications in French Directive is explicit enough about advertising requirements, and if it is, whether they are being met by government agencies.
For Ontario’s French-language media, the stakes are high. Their survival may even depend on it. For French-speaking citizens, the issue is just as critical because, without access to information in their language, they cannot access information that concerns them in the same way other Ontarians can.
For the sake of clarity in a future revision of the Act, the matter of government communications, including advertising and the use of social media, must be clarified once and for all.
126.96.36.199. Social media
Social media are now part of the government communications landscape. Provincial ministries and agencies are using the web, blogs, Facebook, Twitter and so on to get their message out quickly. Yet, social media are also a form of direct communication with citizens. Those often unfiltered conversations necessarily entail equally direct and rapid responses, in both English and French, in the language preferred by the citizen.
However, all too often, government ministries and agencies forget to produce a French version of their newsletters, for example. Or, because of short deadlines, they resort to machine translation engines, which produce very poor-quality results, to say the least.
Yet, the government’s guidelines on communications in French are unequivocal: when social media are used, everything must be posted in both languages or in a bilingual format. The content can be different between the two languages to make it more relevant to the audience concerned. In the Commissioner’s view, however, caution must be exercised because while it is true that specific communications in French are sometimes needed, in other cases, the bulk of the content of the English-language message applies to both the majority and the Francophone community, and should therefore be disseminated in both languages.
From this perspective, the Commissioner therefore recommends that the Minister Responsible for Francophone Affairs propose to incorporate into the Act certain essential principles from the Communications in French Directive.
188.8.131.52. Politicians, officers of Parliament and executives of government agencies
The situation becomes more complicated when a government spokesperson (e.g., a minister or a, subject expert) uses social media. The guidelines indicate that if the person does not speak French, his/her statements should be accompanied by a summary in French, with a note to the effect that any member of the public may request a full translation.
In the Commissioner’s view, this procedure is inadequate. The guidelines are clear concerning the use of social media by ministries and agencies: all communications should be in both languages. It is hard to imagine why things should be any different for government officials.
The Commissioner understands that the main reason for using social media is to communicate directly with the public, in an era where transparency and rapid response are essential. Be that as it may, the spirit and the letter of the French Language Services Act must be observed. In other words, the nature of the message must be taken into consideration. It does not matter much if the account owner says he/she is writing as an “individual”.
For the Commissioner’s Office, the nature of the message serves as a parameter in the handling of complaints about communications. It serves to determine whether a minister, including the Premier, a government official or an officer of Parliament is complying with the spirit of the Act. This means that, for the Commissioner, there is a big difference between announcing a recent speech on Twitter, with a link to the actual speech (which should be published in both languages), and commenting on the latest hockey game between the Toronto Maple Leafs and the Ottawa Senators (which needs no translation).
The Commissioner is aware that we are living in a time where immediacy is everything. However, if government information warrants distribution, the necessary time must be taken to ensure that the information is accessible to every member of the public, including Francophones. He therefore recommends that the Minister Responsible for Francophone Affairs ensure that in the revision of the French Language Services Act, it is made clear that for any use of social media, including by a public official, when the nature of the initial communication is governmental, the communication must be disseminated simultaneously in both French and English.
184.108.40.206. Concept of service
For the sake of clarity, a revised Act should clarify the definition of “service”. Service in French must be moulded to suit the development of Ontario’s Francophone communities.
Moreover, the Commissioner is of the opinion that to achieve substantive equality in French-language services and thus be useful and effective, government policies and programs must be designed and tailored to meet the specific needs of Ontario’s Francophone citizens.
The Supreme Court’s decision in the Desrochers case23 confirms that substantive equality in service delivery may require, depending on the nature of the service being provided, not only different content but also community participation in developing and delivering the service in question. Translation alone is therefore not sufficient in every case to meet the needs of Francophone communities and in no way reflects the principle of substantive equality.
220.127.116.11. Limitation of obligations under section 7
The notion of “services of equal quality” can be very useful in the interpretation of the same concept in the Act, although section 7 may qualify that slightly. It talks about the limitation of obligations if all reasonable measures have been taken and all reasonable plans have been made.
Fortunately, the Ontario Court of Appeal, in the Lalonde case, clarified the interpretation of this section when the Ontario government attempted in vain to use it to restrict its obligations.
“While the Commission, and now the Minister, may exercise a discretion to change and to limit the services offered in French by Montfort, it cannot simply invoke administrative convenience and vague funding concerns as the reasons for doing so (…) The Commission may not issue a directive removing available services in French from Montfort, particularly when the services are not available in French on a full-time basis elsewhere in the Ottawa-Carleton region, without complying with the ‘reasonable and necessary’ requirement of the F.L.S.A.” 24
In other words, you cannot simply say that you tried to provide the service but it did not work. For example, under the Landlord and Tenant Board’s Rules of Practice, when a bilingual member is not available within a reasonable time, the client is entitled to interpretation services.25 This is unacceptable and contrary to case law, since “the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.”26
French-language services are not only an obligation of means, but also of outcomes.27 If this section survives a revision of the Act — which the Commissioner does not want, by the way — it must continue to be interpreted in light of the general purpose of the Act and the well-established principles of interpretation of language rights and the unwritten principles of the Canadian Constitution, including the principle of respect for minorities. The scenario that is most coherent and consistent with case law would be to simply drop this section.
The Ontario government’s Public Appointments Secretariat says it is constantly looking for the real face of diversity and regional representation.
Although Prince Edward Island’s sociodemographic reality is not comparable to Ontario’s, it is worth noting that the percentage of Francophones is roughly the same in both provinces. Under section 6 of Prince Edward Island’s French Language Services Act,28 the Lieutenant Governor in Council or the head of a government institution must give consideration to the representation of members of the Acadian and Francophone community when making an appointment to an agency, board or commission.
Even though Francophone communities make up only about 5% of Ontario’s total population, they are nonetheless dynamic and very active in the province’s social, economic, cultural and political development. Adequate representation of Francophones in extremely important government agencies, such as the LHINs, in the health sector, on the various decision-making tribunals, and on other boards and commissions, makes it possible to better represent, better understand and therefore better serve the public.
22 Office of the French Language Services Commissioner, An Investigation Report Regarding an English-Only H1N1 Flyer: From communication crash to communication coup, Toronto, 2011.
23 Desrochers v. Canada (Industry), 1 S.C.R. 194.
24 Lalonde v. Ontario, op. cit., para. 168.
25 For more information: http://www.sjto.gov.on.ca/documents/ltb/Rules/LTB%20Rules%20of%20Practice.html (page consulted in May 2016).
26 R. v. Beaulac,  1 S.C.R. 768, para. 24.
27 In the Desrochers case, it was demonstrated that the process of providing services must be equivalent in English and French, and that the outcome — i.e., the delivery of a quality service — must also be equivalent.
28 French Language Services Act of Prince Edward Island, c. F-15.2.