An informal meeting between the Official Languages Committee of the Ontario Bar Association and Commissioner Kelly Burke, held on December 12, 2022, provided some insight on her experience as the French Language Services Commissioner of Ontario, a position she has held for three years and which allows her to be at the forefront of linguistic advances. The Commissioner shared her thoughts on access to justice in French in the province, highlighting the importance of community engagement, education and legislative initiatives, notably the active offer of services in French.
As part of the Office of the Ombudsman of Ontario, the Commissioner’s role is to oversee the application of the French Language Services Act, RSO 1990, c F.32 (“FLSA or Act”), a statute conferring language rights and, therefore, quasi-constitutional in nature. As a passionate advocate for such rights, the Commissioner has broad discretionary powers, such as conducting investigations, making special reports, and improving the degree of compliance of government institutions and agencies. The Commissioner is required to publish annual reports and make recommendations with respect to her findings.
In addition to the reactive dimension of her authority, the Commissioner values the proactive aspect of her duties, which serves to promote the Francophone cultural heritage. She infuses academic rigour and emotion in her tireless efforts in the quest for the equality of both official languages.
An exceptional career path
Commissioner Burke was born to a bilingual Franco-Ontarian family in Cornwall, Ontario. She was educated in French from kindergarten onwards. Her passion for her culture and Canadian bilingualism led her to study French and Sociology before eventually joining the Faculty of Education at Queen’s University.
It was in Sarnia, in the western part of the province, where the Commissioner began her career as a teacher, which ultimately informed her path and mandate related to language rights. She was part of the first cohort of teachers in the province’s French immersion program, a popular program that continues to gain momentum today. The Commissioner notes that it was with great pride and emotion that she celebrated the designation of Sarnia under the FLSA on Franco-Ontarian Day in September 2022.
After obtaining a law degree from the University of Ottawa (French Common Law Program) and a master's degree in labour and employment law from Osgoode Hall at York University, she started her legal career dealing with complex labour law issues. She has held senior positions with several Ontario ministries, including Assistant Deputy Minister at the Ministry of Francophone Affairs and Senior Executive at the Ministry of the Attorney General.
Since her appointment on January 13, 2020, the Commissioner has relied on an exceptional team, deeply passionate about language rights, to address real and often high-profile issues. To date, the French Language Services Unit at the Office of the Ombudsman of Ontario has handled more than a thousand cases, as reflected in the Commissioner's three annual reports. Her legal training and understanding of the workings of government have proved indispensable in her duties as Commissioner.
On a day-to-day basis, the Commissioner’s priority is to educate key stakeholders from various sectors, including community groups, ministers, deputy ministers, elected officials and opposition parties, on their rights and obligations under the FLSA while addressing tensions raised by Franco-Ontarians in a productive and sustainable manner.
The Commissioner emphasizes the importance of education and continuing education in French
The Commissioner believes that the legal community plays a crucial role in maintaining the integrity of Ontario’s legislative regime in respect of language rights. The Commissioner’s comments in this regard reflect the consensus that prevailed at the Canadian Bar Association French-Speaking Common Law Members Online Symposium, held on April 22, 2022, that it is the responsibility of lawyers and the various stakeholders in the justice system, including law societies, professional groups and legal associations, to preserve access to justice in French. We all have a role to play as lawyers and paralegals.
The Commissioner highlights the importance of organizing and participating in legal educational programs in French, noting the AJEFO’s and the Law Society of Ontario’s ongoing initiatives to promote awareness and education in French. The Commissioner notes the demand for such initiatives as evidenced by the popularity of a recent program organized in the context of the 2021 International Francophonie Day by the Law Society of Ontario, the AJEFO and the OBA, which attracted the participation of more than 500 people.
The Commissioner invites the legal community to promote French or bilingual positions and encourages lawyers to continue to advise clients regarding their language rights as set out in the Rules of Professional Conduct of the Law Society of Ontario and applicable legislation (a theme addressed in a previous article), to work in French, and to consult the tools offered by the French Language Services Unit of the Office of the Ombudsman of Ontario as well as the resources available on Jurisource.
The Commissioner celebrates the active offer of services in French
The Commissioner is very pleased with the recent enactment of Regulation 544/22 Active offer of Services in French-Prescribed Measures, which will come into force on April 1, 2023. The regulation is in line with the modernization of the FLSA and sets out the measures required to be taken by a government agency or institution of the Legislature to fulfill their “active offer” obligation under the Act. This is a crucial development that will reinforce the coherence and continuity of French-language services within governmental institutions.
Ms. Burke emphasizes the importance of the active offer of services in French, one of the pillars of the Seamless Access to Justice in French Pilot Project introduced by the Ministry of the Attorney General in 2015, of which she was a part. The positive impact of this project is undisputable, particularly on the use of French in the administration of justice in Ontario's courts. While much work remains, this was an innovative and visionary initiative and a great source of inspiration for the future.
Finally, the Commissioner notes that the French Language Services Commissioner’s Compass (FLSC Compass), a diagnostic tool she introduced in her second report of 2020–2021, will assist in measuring the effectiveness of services in French offered by government institutions and the degree of compliance of such institutions with the Act and its related regulations. The Commissioner’s ultimate goal is for government to offer equivalent services without delay.
About the Authors
Christiane Saad is Director of the Law Practice Program at the University of Ottawa and a member of the Official Languages Committee of the Ontario Bar Association.
Kenza Salah is an associate, intellectual property with Osler, Hoskin & Harcourt LLP in Ottawa and the Chair of the Ontario Bar Association’s Official Languages Committee.
 Lalonde v Ontario, 2001 CanLII 21164 (ON CA) at paras 2, 128-140.