In this article, we explore the various forms of the concept of active offer in certain legislative texts and provide an overview of Active Offer of Services in French – Prescribed Measures, Ontario Regulation 544/22, which has recently come into force (the “Regulations”). Some of the characteristics of active offer that emerge from our analysis include: (i) the offer to speak either official language precedes the request by the citizen at the first interaction; (ii) the service provided is equivalent in quality in both official languages; and (iii) the availability of services in both official languages across all forms of oral and written communication.
The concept of active offer has been codified in section 28 of the Official Languages Act, RSC 1985, c 31 (the “OLA”), which can be found in Part IV of the OLA entitled “Communications with and Services to the Public”. Part IV of the OLA ensures equal access to federal services in both official languages. The specific language in section 28 of the OLA (i.e., “appropriate measures”) suggests that Parliament intended to ensure substantive equality between the two official languages.[i]
In 1991, the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 was enacted to establish the terms and conditions of application of the OLA. Although they do not refer to section 28 of the OLA (active offer), these regulations describe the locations where federal institutions must provide services in both official languages.
In Ontario, the concept of active offer was introduced in the French Language Services Act, RSO 1990, c F32 (the “Act”) as part of Bill 43, Build Ontario Act (Budget Measures), 2021, SO 2021, c 40. Prior to the reform, the concept of active offer existed in the Act but applied only to third parties acting on behalf of the government under section 2 of Ontario Regulation 284/11. This linguistic reform reinforced the provincial legislature’s commitment to language rights by incorporating the legal requirement of active offer into subsection 5(1.1) of the Act, thereby establishing institutional bilingualism in the province. Subsection 5(1.1) of the Act provides:
Active Offer of services in French
5 (1.1) If a person has a right under subsection (1) to receive services in French from an office of a government agency or institution of the Legislature, the agency or institution shall do the following to bring the availability of those services in French to the attention of the person from the time contact is first made between the person and the office:
1. Take measures prescribed for the purposes of this paragraph
2. Take such other measures as the agency or institution considers appropriate.
On April 1, 2023, the legislator enacted Ontario Regulation 544/12, which provides a framework for active offer and imposes significant statutory obligations on the province. A few comments are warranted on the scope of the Regulations before describing the content of the provisions: there is no reference to the quality of service as is the case in paragraph 3 of Prince Edward Island’s French Language Services Act, which explicitly provides that the service is of “comparable quality” in both languages. The Regulations also do not provide any criteria regarding the level of language proficiency expected of government employees serving citizens, which is provided for in subsection 2(2) of Manitoba's Bilingual Service Centres Act.
The Regulations prescribe the following measures that government agencies and institutions of the legislature must take to make their active offer a reality. These measures advance the French-Languages services and advance the interests of French speaking communities.
Section 1 of the Regulations creates the expectation that services will be available in French without active search by citizens.
Sections 2 to 4 of the Regulations provide that citizens are informed of the availability of services in both official languages through various means of communication. Whether via telephone or online, the availability of services in both official languages and the promotion of such services is now required.
Sections 5 to 8 of the Regulations provide certain procedures to ensure that service is offered in both languages from the first contact with the citizen and at the various points of contact with citizens. Whether online or in-person, the same standards apply.
Section 9 of the Regulations provides that if the service is given in several stages, a person who has requested to receive a service in French does not have to renew his or her request at subsequent stages of service delivery. This addition is important and should ensure continuous offer of services in French. This section ensures consistency across the continuum of services so that citizens benefit from the same active offer throughout their interactions with the service providers concerned.
Although the above provisions have not yet been the subject of judicial interpretation, some compliance indicators can be found in the 2021-2022 annual report of the French Language Services Commissioner of Ontario, which indicates that between October 1, 2021, and September 30, 2022, the French Language Services Unit of the Office of the Ombudsman received 277 complaints in respect of institutions subject to the Act, almost half of which raise communication issues.
About the authors
- Kenza Salah is an Associate with Osler, Hoskin & Harcourt LLP in Ottawa and the Chair of the Ontario Bar Association’s Official Languages Committee.
- 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.
- Alexanne Stewart is a lawyer and project manager at Jurisource.ca, a project from the Association des juristes d’expression française de l’Ontario (AJEFO). She is also a member of the Official Languages Committee of the Ontario Bar Association.
[i] Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development), 2018 FC 530 at paras 211-214 (rev’d on other grounds 2022 FCA 14).