Dispute Resolution Reference Guide
The Official Languages Act
Prior to the negotiations, one or more of the parties may request that the negotiations be conducted in both official languages and/or that the relevant documentation be provided in both French and English. At this point, it will be necessary to examine the Official Languages Act (hereafter the “OLA”) as well as related laws and government policies in order to determine the extent to which it is necessary to comply with these requests.
The OLA recognizes the equal status of the French and English languages as to their use in all federal institutions. To that end, the Act defines federal responsibilities within areas such as the use of English and French with regard to legislative and other instruments (Part II), the administration of justice (Part III), communications with and services to the public (Part IV), the language of work (Part V), the recourse available to ensure respect for linguistic equality (Parts IX and X) and the roles and responsibilities of various federal institutions in language matters. The Official Languages (Communications with and Services to the Public) Regulations elaborate on the OLA provisions concerning communications with and services to the public.
The applicability of the OLA will depend on a number of factors, such as the nature of the dispute between the parties, the wording of the relevant provisions of the Act and the scope of the OLA Regulations. For example, the Act specifies the circumstances under which federal-provincial agreements must be drafted in English and French (s. 10). Under Part IV of the Act, any member of the public has the right to services from and communication with any federal institution in the language of the individual's choice (s. 21). Outside of the National Capital Region, this duty is subject to the requirement that there be a “significant demand for communications with and services from that office or facility in that language” (s. 22(b)), which is defined in the Regulations. Part V of the Act requires every federal institution to offer services to its employees and officers in both official languages, whether in their individual capacities or to support them in the performance of their duties (s. 36(1)(a)). In light of these criteria, it is possible that negotiations between the federal government and a member of the public or between it and one of its employees could be considered as “communications”or “services” for the purposes of the OLA.
Whether or not there is a legal obligation to provide bilingual services in a negotiation, Justice counsel should also consider whether providing such services would facilitate the negotiating process. Allowing the parties to express themselves in the official language of their choice and providing them with relevant documentation in that language could reduce the possibility of misunderstandings as well as being an effective sign of goodwill on the part of the federal government.
General responsibility for the OLA has been conferred on the Department of Justice, which also advises the federal government on official languages issues. Within the Department of Justice, the Official Languages Law Group serves as a central source of expertise regarding official language law issues (law, legislation and legal policy). The Official Languages Law Group provides advice and coordinates legal opinions regarding the OLA, related legislation and language guarantees within the Charter and the Constitution. As well, the Group has the lead in developing the legal position of the government regarding language rights, whether the government is a party to or an intervenor in litigation.
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