Mr. Chair, ladies and gentlemen members of the committee. I would like to begin by thanking you for inviting us to present the findings of our investigation report on the Nurses Association of New Brunswick regarding the allegations of deficiency in the services and the treatment of members of the public wishing to proceed in French.
It is a real honour and privilege for me to be here with you today and to testify as part of your important study on issues relating to French-language training in the field of nursing in Canada.
The Commissioner of Official Languages for New Brunswick is an independent officer of the Legislative Assembly. My role is to investigate, present reports, and make recommendations respecting compliance with the Official Languages Act and to promote the advancement of the two official languages in the province.
First, to provide you with some context, I will discuss the linguistic obligations of the associations that regulate a profession in New Brunswick.
The Nurses Association of New Brunswick is one of over 40 associations that regulate a profession in New Brunswick. Professional associations exercise the fundamental role of protecting the public by regulating and monitoring professional practice.
Professional associations have been required to provide their services in both official languages since July 1, 2016. Pursuant to the OLA, members of associations and the public have the right to communicate with professional associations and receive services in the official language of their choice. Moreover, the OLA stipulates that people cannot be placed at a disadvantage because they have chosen one official language rather than the other to fulfil a requirement of a professional association, such as writing an exam.
The linguistic obligations of professional associations are the result of changes made to the OLA by the members of the Legislative Assembly in 2013 and 2015. Associations therefore had a three-year transitional period to prepare for their new linguistic obligations.
The Office of the Commissioner has developed a factsheet, outlining the linguistic obligations of professional associations. I handed it out, but it's also available on our website.
Now I'll tell you a little bit about the complaints we received.
On July 12, 2016, the complainants contacted our office in order to submit a complaint against the Nurses Association of New Brunswick. The complainants alleged that they were placed at a disadvantage when they chose to use French to satisfy the requirements to be able to work in the nursing profession in New Brunswick.
In their complaint, they alleged that the association failed to fulfill its linguistic obligations by placing at a disadvantage people who chose to exercise their right to use French in response to the requirements imposed by the professional association. In particular, they mentioned problems with translation, as well as the adaptation from the English version towards the French version of the registration exam, the National Council Licensure Examination for Registered Nurses, commonly referred to as the NCLEX-RN. They also complained of a lack of French language resources to prepare for this exam.
The two complaints were in regard to subsection 41.1(3) of the OLA, which appears on one of the handouts I gave you. The subsection reads as follows: "No person shall be placed at a disadvantage by reason of exercising his or her right to choose an official language in which to fulfil requirements imposed by a professional association."
Our office broke these complaints into two separate streams: (1) the availability of resources for the preparation of the NCLEX-RN exam and (2) the quality of the adaptation and translation of the NCLEX-RN exam from the original English version to the French version.
The Office of the Commissioner concluded that the complaints were founded and that the Nurses Association of New Brunswick had violated subsection 41.1(3) of the Official Languages Act. In New Brunswick, English and French, as well as the two official linguistic communities, have equal status, rights and privileges.
Under this constitutional principle of equality, all organizations subject to the Official Languages Act are obliged to provide services of equal quality in both languages. In this context, one must recall that the Supreme Court of Canada has stated that providing equal quality of service may require taking into account the particular needs of a minority linguistic community and the adaptation of a program or a service to its reality.
We must also be reminded that each official linguistic community in New Brunswick has the right to distinct educational institutions in order to preserve and promote each community. In New Brunswick this duality means that in fact each community develops its own post-secondary training programs in terms of its needs and priorities.
In the context of its activities, the Nurses Association of New Brunswick has a legal obligation to act in a way that respects the constitutional principle of equality inherent in the language rights recognized in the Official Languages Act.
Following our investigation, the Office of the Commissioner concluded that the association has not respected this principle of equality, because it adopted a licensing exam that places members of the francophone community at a disadvantage.
There is indeed a significant gap in the exam preparation resources available to one linguistic community compared to the other. Whereas there is only one French-language question bank tool, with no simulation exam and a limited number of practice questions, there is a vast array of high-quality English-language exam simulations that are commercially available.
Therefore, francophone candidates are not on a level playing field compared to their anglophone counterparts. It is acknowledged that the association does not exercise control over these resources nor does it endorse them. However, the NCLEX-RN does not exist in a vacuum and the Office of the Commissioner finds that the association cannot ignore the existence of these resources as well as their availability. From the time the association made the decision to use the NCLEX-RN exam, francophone and anglophone candidates have not been on an equal footing.
An independent review of the French version of the exam showed that, overall, exam questions were well translated. However, flaws were found with some questions, with the reviewer stating that the likely cause of these deficiencies was a manipulation of the exam questions by individuals who were not qualified translators after the translation by professionals had taken place. The Office of the Commissioner strongly denounces that the French version of the NCLEX-RN exam may have been subject to modifications that were not reviewed by certified translators. Such practices compromise the quality of this exam.
It is worth noting that the association had a transition period of three years to prepare for its obligations under the Official Languages Act, so although professional associations did not fall under the Official Languages Act in 2015 when the NCLEX-RN was introduced in New Brunswick, the association knew that obligations were forthcoming. When the association committed to implementing the NCLEX-RN as the new entry-to-practice exam, the association would have been aware of the many English-only exam preparation products that were available.
Moreover, the Office of the Commissioner notes that the adoption of this exam has created a situation that encourages francophone students to use English-language resources to prepare for the association's exam, which negatively affects the vitality of the French language.
At the end of the investigation, I made the following recommendations:
First,
that the Association take the necessary actions so that requirements to enter the nursing profession in New Brunswick fully respect subsection 41.1(3) of the Official Languages Act of New Brunswick, or OLA;
Second,
that, regardless of the entry to practice exam chosen by the association, the translation of the exam and any subsequent revision be done by a certified translator;
Third,
that the Association report to the Office of the Commissioner on the measures taken to respect subsection 41.1(3) of the OLA no later than September 4, 2018.
Thank you for your interest in this matter. My colleague Mr. Wagg and I will be pleased to answer your questions.
