Thank you so much.
I'm so grateful for this opportunity to present to this committee on the question of the modernization of the Official Languages Act.
Today I will address the specific question of whether and how an official languages tribunal should be established.
My presentation will proceed in three main parts. First, I will survey the reasons for establishing an official languages tribunal. Second, I will examine the institutional design options for the relationship between the commissioner and an official languages tribunal. Third, I will address some issues relating to the operations of an official languages tribunal.
Let me start with the reasons for establishing an official languages tribunal.
As the members of the committee are all very well aware, there are multiple avenues by which judicial remedies are available under the Official Languages Act, in particular from section 77 forward. Given that there are these options for judicial remedies, why might we think that an official languages tribunal would be a good idea? Let me suggest three possible reasons.
First is a reason relating to the separation of powers. The language of subsection 77(4) grants the Federal Court broad remedial discretion. Indeed, the language echoes the language of subsection 24(1) of the Constitution Act of 1982. However, the Federal Court has cited from the Supreme Court of Canada's reasons in the case of Doucet-Boudreau v. Nova Scotia (Minister of Education) to note that there are separation of powers limits on the extent to which a Federal Court, or indeed any court, can exercise its remedial jurisdiction.
Today I don't venture an opinion as to whether the court has in fact been reticent to use the full range of remedies available to it, although I do know that the Fédération des communautés francophones et acadienne du Canada believes it has.
My point is that separation of powers considerations act as a limit, in principle, on what remedies a court may order. By contrast, administrative tribunals are not limited by such considerations. They are therefore comparatively freer to order remedies that are, in the words of my colleague Cristie Ford, “prospective, open-ended, and subject to ongoing revision and elaboration.”
In light of this, I would agree with the FCFA's recommendation that any provision specifying the proposed official languages tribunal's remedial powers include a non-exhaustive list of possible remedies, including ones that allow for appropriate continuing oversight. That is the first rationale for establishing an official languages tribunal, a rationale grounded in concerns about the separation of powers.
Let me turn to the second rationale for establishing an official languages tribunal. Complainants contemplating a proceeding in front of the Federal Court may face issues of accessibility that they would not face in front of a well-designed and well-funded official languages tribunal. An official languages tribunal modelled on human rights tribunals in the provinces and at the federal level would have simplified procedures and would provide assistance to complainants seeking to present claims before it.
Concerns about accessibility have long justified the creation of human rights tribunals, and although there are some ongoing concerns about whether they have delivered on the promise of greater accessibility, I think it is generally accepted that they are more accessible than the courts. There is reason to believe that this would also be true of an official languages tribunal, so a second possible rationale for an official languages tribunal centres on issues of accessibility.
Third, an official languages tribunal would likely have greater expertise in resolving disputes under a revised official languages act than would the Federal Court. The source of this potential relative advantage would be twofold. First, in a revised official languages act, Parliament could specify that official language tribunal members must have specific expertise relevant to interpreting and applying the Official Languages Act. Second, once established, an official languages tribunal would, through repeated exposure to disputes under the Official Languages Act, develop expertise in the application and interpretation of its provisions.
Those are three rationales for creating an official languages tribunal, despite the fact that there are judicial remedies available under the Official Languages Act.
Let me turn now to the possible relationships between the commissioner and an official languages tribunal.
Generally speaking, there are two kinds of relationships between human rights commissions and tribunals in Canada, and these may provide templates for how to structure the relationship between the commissioner and an official languages tribunal.
In the first model, a human rights commission acts as a gatekeeper for a human rights tribunal. It investigates and attempts to settle complaints; decides whether complaints should be referred to a tribunal for adjudication; and once a claim is before a tribunal, it can offer assistance to a claimant, represent a claimant or represent the public interest.
Critics argue that a commission in this model occupies potentially contradictory roles. A perception of conflicting roles may arise because at the investigation phase the commission is intended to be neutral, but if the complaint goes before a tribunal and the commission participates in the adjudication, it will take a position.
Related to this criticism is another that charges these kinds of commissions would undertake their functions in improper ways, particularly in contexts where human rights systems are underfunded. Critics argue that commissions have, for instance, used threats of delays as a means of pushing complainants to settle. Critics charge this model with devoting disproportionate resources to addressing individual complaints and diverting commission resources and attention from systemic issues.
That is a first possible relationship between the commissioner and the official languages tribunal, one in which the commissioner would undertake the kinds of gatekeeper functions that a human rights commission does in the first model of human rights commission and human rights tribunal relationships.
In the second model, which is the one currently in operation in Ontario, complainants have direct access to a human rights tribunal and the tribunal itself processes the application, offers mediation services and adjudicates on the merits of a dispute. In this model, the commission:
would no longer receive, process, mediate, and investigate complaints and, where...appropriate, forward them to the Tribunal. Instead, the Commission's role would...focus on developing policies, providing information and promoting compliance with the Code. However, the Commission, [under the revised Ontario model, does retain] its authority to initiate and intervene in applications before the Tribunal.
This model addresses the concerns about contradictory roles discussed above, as the commission would no longer have gatekeeping, settlement and investigative functions. In addition, in some jurisdictions, the direct access model has resulted in significantly reduced wait times.
Nonetheless, the direct access model has been subject to some criticism. For instance, Dominique Clément argues that, “In British Columbia, the Human Rights Tribunal spends more time vetting complaints for dismissal than adjudicating the merits of human rights complaints.”
In addition, because tribunals do not conduct investigations or provide representation for complainants, direct access models are perceived to be less accessible.
These are two kinds of models that could be used in structuring the relationship between the commissioner and a potential official languages tribunal.
Let me turn now to some operational issues. Under the second model, obviously the commissioner would focus on systemic concerns rather than individual complaints, and would not have investigative or gatekeeping functions, although the commissioner could retain the power to participate in a tribunal hearing to advance public interest arguments.
If this model were adopted, there would have to be sufficient commitment of resources to ensure that claimants would be able to present informed and competent complaints before the tribunal. There are models for providing this kind of support, whether through clinics or through support centres.
If a tribunal were created, since a tribunal would be charged with interpreting and applying a quasi-constitutional statute, the official languages tribunal would need to be insulated from any suggestion that it is subject to partisan influence, so it would be important to have clear criteria for expertise for appointments, protections for security of tenure during a term and potentially even protections around reappointment.
Finally, I suggest that a revised official languages act should include a provision that allows for a review after three years of coming into force. A similar provision was available in the Human Rights Code of Ontario when they revised their code.
Likely, simply because there are going to be large systemic changes with the coming into force of a new OLA, it would be helpful to have stakeholders and experts able to comment on whether or not the revised OLA has achieved its legislative objectives.
These are some thoughts about the creation of an official languages tribunal, rationales for its creation, issues around institutional design, and finally some operational questions.