Implementing the policy and directive on transfer payments

Table of Contents

Objectives

Introduction

1- Implementation of the Language Provisions of the Policy (PTP) and the Directive (DTP) on Transfer Payments

Third party contributions: OLA Section 25 cases

2- Determination of Language Clauses: First Analysis

3- Model Language Clauses: Principles

Additional References and Tools

Questions for management

Objectives

The 2008 Policy on Transfer Payments (PTP) and its Directive (DTP) mandates federal departments to meet the requirements of the Official Languages Act(the Act) in the design and delivery of transfer payments, and in related communications and reporting. This guide is intended to support Canadian Heritage programs managers and officers in complying with these requirements.

In general, these requirements relate to Part VII of the Act, which sets out the federal government’s commitment to enhancing the vitality and supporting the development of English and French minority language communities in Canada, as well as fostering the full recognition and use of both English and French in Canadian society. The language provisions of the Policy and Directive replace the language provisions of the former Policy on Transfer Payments and the official languages Policy on Grants and Contributions: Chapter 1–4.

This guide does not provide a ready-made formula, as the realities addressed by transfer payments are very diverse and cannot be subject to a one-size-fits-all linguistic determination. Rather, it provides managers and officers with tools to help them analyze their specific situations and make informed choices. In all cases, this analysis must be documented, both at the stage of program design and development, and in the assessment of an individual transfer payment file.

This guide is an evergreen document that will be periodically revised to reflect best practices selected by the Centres of Expertise either at Canadian Heritage or Treasury Board.

Introduction

The government and the broad framework to account for Official Languages Requirements (OLR)

Privy Council Office and Official Languages Requirements

The Privy Council Office (PCO) believes that OLR should be considered in the program or policy development process leading to a Memorandum to Cabinet (MC). Where appropriate, evidence that OLR assessment has been conducted in the development of the initiative should be included in the MC.( please refer to the PCO MC drafter’s guide). The OLR considerations are also presented in the PCH Guide to preparing a Memorandum to Cabinet.

Treasury Board Secretariat and Official Languages Requirements

While Departments are responsible for developing policies, programs and services that are compliant with overall government policies, including OLR, the Treasury Board Secretariat’s (TBS) role is to review Treasury Board (TB) submissions and provide advice related to the integration of OLR. Bearing in mind that the appropriateness of OLR have been determined in the Memorandum to Cabinet, TBS analysts assess incoming submissions to determine whether the Department has taken OLR into account and ensure that OLR are considered at each phase of the policy/program development process related to the TB submission (see the Guide to Preparing Treasury Board Submissions, section 9.5 and Appendix E).

The Department and Official Languages Requirements

Deputy Heads are responsible to ensure that all their programs demonstrate how they respond to those requirements. Relevant information can be found in program Terms and Conditions, Program Guidelines, Application Form and its analysis (i.e. RAF), in some provision of the funding agreement, as well as in the recipient’s eventual final report, if applicable.

1. Implementation of the language provisions of the Policy (PTP) and Directive on Transfer Payments (DTP)

A. At the program design stage

NOTE: In this guide, shaded text quotes the Policy and its Directive.

Transfer Payment Policy

Ensuring, when transfer payment programs support activities that benefit members of both official language communities, that their design and delivery respect the obligations of the Government of Canada as set out in Part VII of the Official Languages Act and that services and benefits are made available in both official languages in compliance with the Official Languages Act. (sec. 6.5.14)

Transfer Payment Directive

Provision 

Core Design Elements (Appendix B, paragraph 22)

Departmental managers with responsibility for the design or redesign of a transfer payment program are expected to assess and document: the manner in which the obligations of the Government of Canada set out in the Official Languages Act are to be taken into account and, where relevant, applied in designing the transfer payment program.

Comment

From the time of a program’s design or redesign, it is essential to analyze its impact on the government’s official languages commitments in order to determine what measures will have to be taken to meet the obligations imposed by the Act. The analysis should consider various elements:

  • targeted population ,
  • the program’s scope (international to local),
  • symbolic importance of the initiatives,
  • type of recipients,
  • level of the federal contribution (financial or other).

This analysis may include:

  • Findings of studies or consultations held by the program that elaborate on the program’s priorities and explain the approach taken to official languages.
  • Socio-demographic data analysis identifying,
  • for example, the reasons for an integrated or separate approach for the two linguistic groups.

Conclusions may vary depending on the situation, but in all cases the analysis must be documented and make clear the reasons for the chosen approach, especially if it is determined that there is no impact. Any Memorandum to Cabinet or Treasury Board submission associated with the program must include this demonstration.

Provision

T & Cs provisions relating to grants (Appendix D, paragraph 10 ) and contributions (Appendix E, paragraph 12)

In cases where the program supports activities that may have an impact on members of either official language community, the terms and conditions must include:

  • a description, where appropriate, of how the transfer payment program will respect the Government of Canada’s obligations under Part VII of the Official Languages Act; and
  • a description, where appropriate, of how the services or benefits will be made available in both official languages in accordance with the Official Languages Act.

Comment

If it is determined that the program supports activities that may have an impact on members of either official language minority groups, the terms and conditions must make mention of at least the following:

  • measures to be implemented to support the development of official language minority communities and foster the full recognition and use of both English and French in Canadian society.
  • when the recipients’ activities are aimed at a public comprising both official language groups, or could have an impact on the promotion of Canada’s bilingual character, at home or abroad, the funding agreement made with the recipient should specify the measures that will be taken in this regard and that the recipient has access to the necessary resources.

The terms and conditions may also include statements on:

  • availability of demolinguistic data on the locations where the program will fund projects;
  • resources, documents, publications and references enabling the recipients to meet their language obligations.

Provision

Provisions related to transfer payments to other orders of government (Appendix I, Part 1, paragraph 8)

Departmental managers responsible for preparing terms and conditions are to ensure that the following mandatory elements are addressed in the terms and conditions for the transfer payment program: A description of how the federal department will ensure that obligations set out in Part VII of the Official Languages Act will be taken into account and, where relevant, applied.

Comment

The description included in the terms and conditions should consider the nature of the constitutional jurisdictions concerned, since the possible requirements may vary for federal, provincial or shared jurisdictions.

Provision

Provisions related to transfer payments to foreign recipients (Appendix J, Part B, paragraph 12)

Departmental managers are to ensure that the funding agreement also addresses the following elements where they are relevant: Provisions outlining the foreign recipient’s responsibilities to make services or benefits available in both of Canada’s official languages.

Comment

In the context of the Policy, “foreign recipients” are limited to foreign States or organizations of States.

The provisions outlined should consider, in particular, the opportunity for the project to promote Canada’s bilingualism abroad.


Third party contributions: OLA Section 25 cases

The PTP indicates that a program may either provide funding directly to a recipient or choose the select a third party to distribute the funds based on agreed upon terms and conditions.

Because transfer payments do not result in the acquisition of any goods, services or assets by the Government of Canada, (s. 3.1) the recipient should not, in principle, represent a third party acting on behalf of the government.

In the case of an exception to this principle, the situation should be considered in light of section 25 of the Act which states that services provided on behalf of a federal institution are subject to Treasury Board requirements relating official languages in the provision of services and communication with the public

Program managers are invited to contact the Centre of Expertise and their legal advisor for the application of the OLA in funding agreements with third party recipients.

B. At the program delivery stage

Transfer Payment Directive

Provision

Funding Agreement Provisions for Grants (Appendix F, paragraph 16) and Contributions (Appendix G, paragraph 37)

In cases where the terms and conditions have identified that the transfer payment program  may have an impact on members of either official language community, where appropriate, the agreement must include:
 

  • a clause outlining the manner in which the recipient's activities will support the Government of Canada's obligation to enhance the vitality of the official language minorities in Canada and support and assist their development as well as foster the full recognition and use of both English and French in Canadian society; and
  • a description of how the services or benefits will be made available in both official languages in accordance with the Official Languages Act.

Comment

When it is determined that the program supports activities that may have an impact on members of either official language minority community, the institution must clearly inform the potential recipients about the language obligations that may result from their agreement to be supported by public funds (for example, via the call letter).

When it is determined that the activities of a specific recipient may have an impact on members of both official language groups (in most cases, involving a program aimed at a public composed of both linguistic groups):

  • The agreement between the two parties must specify the recipient’s commitments, particularly with regard to services to the public, if appropriate. (See sections 2 and 3)
  • The capacity and commitment of the recipient to meet the official languages requirements become criteria for obtaining funding.
  • The recipient has access to the required tools to provide these services in both official languages .
  • It is therefore necessary to take into account the funds required to comply with the language clauses during the review of funding granted to the recipient.
  • In the case of a contribution, the institution must establish the appropriate evaluation and control measures to ensure adequate follow-up.

 

2. Determination of Language Clauses: First Analysis

Factors to consider / Examples of questions to raise

  • Target population:
    • Is the directly targeted population composed of individuals or groups belonging to both linguistic communities?
    • In the general public, what is the level of potential demand for services in both official languages?
    • If, by its very nature, the project is aimed at only one linguistic group (e.g. film festival, cultural event for an official-language minority community), could it be promoted to the other group to encourage increased understanding between the two groups?
  • Opportunity for the official-language minority community to participate in the project:
    • Does the project present an opportunity to promote the participation or representation of the official-language minority community (e.g. a cultural or heritage event in an area where there is a large official-language minority population)
  • Project scope:

    • Is the project national in scope and highly likely to reach both language groups?
    • If the project is local in scope, is it delivered in a region with a significant official language minority?
  • Symbolic importance of project:
    • Does the project have significant historical, cultural, sporting interest, or other?
    • Does the project relate to the visibility of Canadian identity abroad?
  • Nature of recipient:
    • Is the recipient a national organization that should clearly have a concern for official languages?
    • Does the nature of the recipient raise public policy issues broader than the funding agreement concerned, as in the case of an agreement with a province?
  • Level of federal contribution:
    • Is the federal contribution low or high?: this, in conjunction with the other factors could affect the nature and scope of language requirements to be requested

3. Model Language Clauses: Principles

Notes on the approach for selecting a clause

  1. Based on the answers to the previous questions and on the overall project analysis, the program officer/manager should determine a language requirement level that, in his/her analysis, best addresses the known official languages needs and opportunities. Given the wide variety of possible situations, these requirements may vary considerably from one case to another.
  2. In the case of third-party agreements, the agreement must spell out the OL requirements for both the immediate and the ultimate recipients.
  3. However, for every case, similar situations should have comparable language requirements. The validity of a given language clause is closely related to how consistent it is with another. This is where the advisory role of the Centre of Expertise comes into play.
  4. The proposed clauses :
    • are generic. They obviously cannot account for the specific details and issues of each funding agreement, which means that the program officer/manager must make the necessary clarifications, where required – including requirements other than those relating to language of service;
    • are presented in order from minimum to maximum requirement, and relate to some or all of the following aspects of the project *:
      • recognition of Canadian Heritage support
      • general information about the project
      • signage
      • services
    • refer to the opportunity for the official-language minority community to “participate” in the project design, delivery and/or public event.

* In each case, it will be important to specify, where necessary, the recipient’s intended communication methods that will be subject to bilingual requirements (i.e. by phone, in person, in writing or online).

Model Language Clauses

The funding agreement requires that as a minimum

In addition, the funding agreement may require that, as appropriate,

1. very low level requirement

The recipient is to ensure that:

  • basic project information is developed and is available in English and French
  • the official-language minority community is invited to participate in the project public event.

2. low level requirement

The recipient is to ensure that:

  • basic project information is developed and is available in English and French
  • main signage components are in English and French; and
  • the official-language minority community is invited to participate in the project public event, where appropriate.

3. medium level requirement

The recipient is to ensure that:

  • basic project information is developed and is available in English and French
  • all signage related to the project is in English and French;
  • basic service (e.g. reception can provide bilingual resources or staff, upon request) and communication (publicity, public notices, etc.) is available in English and French; and
  • the official-language community is invited to participate in the project public event, where appropriate

4. high level requirement

The recipient is to ensure that:

  • all/most basic project information is developed and is available in English and French
  • all signage, communication and services are available and offered in English and French; and
  • the official-language minority community is invited to participate in the project design,delivery and public event, where appropriate.

Additional references and tools

References:

  1. Official Languages Act: http://lois.justice.gc.ca/en/O-3.01/index.html?noCookie
  2. Guide for federal institutions – Implementation of Part VII of the Official Languages Act: http://www.pch.gc.ca/pgm/lo-ol/outils-tools/guide-eng.cfm
  3. Policy on Transfer Payments : http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=13525&section=text#cha3
  4. Directive on Transfer Payments http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=14208
Official Languages Act

Information on communities

Provincial/Territorial sociodemographic profiles and community-based contacts: 
FCFA http://www.fcfa.ca/profils/ 
Cioyenneté et Immigration http://www.cic.gc.ca/english/newcomers/francophone/profiles.asp
Justice Canada http://www.justice.gc.ca/eng/pi/franc/41/olmc-closm.html
Community Information Database http://www.cid-bdc.ca/english/index.html

OLMC Regional Profiles:
Intranet PCH http://kcs/Identity/officialLang/RegProfiles/demo_profiles/index.htm 
Commissariat aux langues officielles http://www.ocol-clo.gc.ca/html/stats_e.php

Official language minority communities (OLMC)-specific research in Canada:
Moncton Institute http://www.icrml.ca/index.php?option=com_frontpage&Itemid=1&lang=en

List of National Community Organisations:
PCH Website http://www.pch.gc.ca/pgm/lo-ol/href/index-eng.cfm

OLMC Global Development Plans: http://www.pch.gc.ca/pgm/lo-ol/entente-agreement/comm/index-eng.cfm

Other useful links

5. Policy on the use of official languages for communications with and services to the public: http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/OffLang/puolcsp-pllocpps_e.asp

6. Policy on language of work: http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/OffLang/plw-plt_e.asp

7. Policy on official languages for human resources management: http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/OffLang/polhrm-plogrh_e.asp

8. PCO Memorandum to Cabinet drafter’s guide:
http://publiservice.pco-bcp.gc.ca/default.asp? Language =E&Page=mc

9. A PCH Guide to preparing a Memorandum to Cabinet:
 http://kcs/HRNetwork/uploads/16436/Guide_Writing_Cabinet_Official_Languages_e.pdf

10. A Guide to establish official languages requirements in PCH programs
http://kcs/fmb-dgf/catgccentre/docs/Lentille_LO_Guide%20PCH_En.pdf

A Guide to Preparing Treasury Board Submissions, section 9.5 and Appendix E;http://www.tbs-sct.gc.ca/pubs_pol/opepubs/tbm_162/gptbs-gppct-eng.asp

This questionnaire only applies to program branches (NCR)

Questionnaire on Official Languages Requirements in Canadian Heritage Programs

The 2008 Policy on Transfer Payments (PTP) and its Directive (DTP) mandates federal departments to meet the requirements of the Official Languages Act(OLA) in the design and delivery of transfer payments, and in related communications and reporting.

Deputy Heads are responsible to ensure that all their programs demonstrate how they respond to those requirements. Relevant information can be found in program Terms and Conditions, Program Guidelines, Application Form and its analysis (i.e. RAF), in some provision of the funding agreement, as well as in the recipient’s eventual final report, if applicable.

The attached questionnaire is designed to help programs better meet official languages requirements pertaining to Part VII - section 41* of the OLA. The information submitted will represent a baseline of official languages requirements for all programs in the Department; the best practices drawn from it will be shared with programs allowing them to make some changes to ensure a more uniform approach across the Department. Namely, this information will be very useful for program officers who have to spell out official languages requirements in funding agreements.

Please return the questionnaire approved by your director general before April 30, 2010 to your sectoral coordinator.

You can refer to the Guide to Establish Official Languages Requirements in PCH programs (click here) . http://kcs/fmb-dgf/catgccentre/docs/Lentille_LO_Guide%20PCH_En.pdf

Note: This Guide was presented to Managers and Program Officers at the September 2009 national training on grants and contributions management. It has also been presented to Branches Management Meetings in the Fall of 2009.

* Part VII - section 41of the OLA pertains to the federal government’s commitment to support the development of official-language minority communities and to enhance English and French in Canadian society.

Questionnaire on Official Languages Requirements in Programs at Canadian Heritage

Name of the program

Program Manager

Planned Date for T&C renewal

Date Questionnaire Filled

Director General’s Signature

1 : How does your program design/renewal take official languages (part VII – section 41) into account?

- This information could be found, among others, in the Memorandum to Cabinet, in the official languages impact analysis of the Treasury Board submission, in the terms and conditions or other internal documents.

2 : How are official languages (part VII – section 41) reflected in the criteria for the selection of recipients and/or eligible activities?
- Is there an integrated or separate approach for the two linguistic groups?
- The terms and conditions allow for an asymmetrical approach if necessary?
- Eligible expenditures include, among others, translation costs?
- Do you collect information and reports on this aspect?

3 : How does the program tools for applicants (guidelines, guide and application form, etc.) communicate official languages requirements (part VII – section 41)?
- Are there specific “official languages” tools with explanations?
- Rating guides, evaluation grids, dedicated allocations, etc.?

4 : How does your program support the program officers analyzing applications and formulating linguistic clauses to be incorporated in funding agreements?
- Internal officers’ coordination and support mechanisms?
- Standard clauses?

5 : Which improvements/clarifications could be made to the program to improve the way it meets the official languages requirements (part VII – section 41)?
- Consult stakeholders such as regional offices, Section 41 coordinators at PCH, legal advisors, official languages champion/co-champion?
- Produce analysis of documents, undertake research, obtain statistics, etc., in order to integrate official-language minority communities into the program objectives and expected results?

6 : Describe typical scenario(s), if applicable, of applications funded by your program and where linguistic clauses exist. In these cases: 
- how are the official languages requirements addressed by recipients?
- are official languages requirements specifically identified in the funding agreement (i.e. in addition to the official language clause provided in the standard contribution agreement)?