The Supreme Court of Canada Decision in the CALDECH (Desrochers) case and Analytical Grid

Treasury Board Responsibilities

Treasury Board (TB) has the responsibility for the general coordination of the policies and programs for Part IV (Communications with and Services to the Public), Part V (Language of Work) and Part VI (Participation of English Speaking and French Speaking Canadians) of the Official Languages Act (OLA). In the Roadmap for Canada's Linguistic Duality 2008-2013: Acting for the Future, which is the Government of Canada's renewed commitment to linguistic duality, the Office of the Chief Human Resources Officer (OCHRO) plays a role in ensuring efficient governance to better serve Canadians.

Implications of the Decision

The Office of the Chief Human Resources Officer, in supporting the Treasury Board, has analyzed the decision in the CALDECH case. The Court has found that the development and implementation of identical services for each of the two official language communities does not necessarily result in substantive equality, depending on the nature of the service provided and its objectives. One can conclude from this decision that in order to meet obligations under Part IV of the Official Languages Act, existing services may sometimes have to be adapted to take into account the needs of the minority as well as those of the majority. In fact, the Court indicated that the "content of the principle of linguistic equality in government services is not necessarily uniform".

What emerges from this decision is that it is essential for federal institutions to be well informed about the specific needs and realities of the official language minority being served to be able to satisfy the principle of substantive equality as formulated by the Court. When the participation of the targeted community is required to develop or implement a service or program, or if the purpose of the service or program is community development, it is necessary to consult the official language minority to the same extent as the majority community.

Federal Institutions' Responsibilities

In order to implement the judgement of the Court, federal institutions subject to Part IV of the Official Languages Act and Treasury Board policies must:

• Immediately start to review existing services and programs—especially those that require the participation of the target population for their development or implementation or that have to do with community development—to determine if they satisfy the principle of substantive equality. In the case of non-compliance, they must adapt the services to meet the needs of the minority;
• Take into account the needs of the minority when putting in place a new service or program, or when modifying an existing service or program. This would apply especially in the case where the development or implementation of a given service or program requires the participation of the targeted community, or has to do with community development; and
• Take into account the principle of substantive equality in strategic planning, in the development and assessment of policies and programs, as well as in program expenditure reviews.

In 2005 federal institutions were asked to conduct a review of their activities in light of their new obligations to take positive measures to implement the government's commitment to the development of Francophone and Anglophone minorities and for the promotion of both official languages in Canadian society (Part VII of the Official Languages Act). It is possible that some institutions have already conducted a similar exercise as outlined above with the perspective of implementing their obligations under Part VII. The findings and any adjustments made to programs as a result, could be considered for the purposes of this current review.

It should be kept in mind that while the two approaches may appear similar in their application, they respond to different legal obligations: federal institutions must take positive steps under Part VII but they retain a degree of discretion in terms of how they select these measures. On the other hand, federal institutions have to serve the Canadian public in both official languages, with substantive equality as the standard that is to be achieved in every case where Part IV applies.

This interpretation of the requirements of Part IV of the Official Languages Act, to be read in conjunction with the Directive on Official Languages for Communications and Services is based on the court's analysis of the principle of linguistic equality in the provision of government services in the CALDECH case.

Analytical Grid – Substantive Equality

An analytical grid has been created to assist Federal Institutions in applying the principle of substantive equality to their institutions' services and programs, including those delivered by a third party on behalf of the institutions.

Each institution, while taking into account its mandate and diversity of programs and services, must determine the best way to proceed in implementing such a review. It should document the steps taken in order to be able to report on its results as required.