A strong Official Languages Act that protects both linguistic communities in Canada, especially in New Brunswick Égalité Santé en Français N.B. inc. (Égalité Santé) wants to contribute to the debate surrounding the review of the Official Languages Act of Canada (OLA-CA)* and the calls to change it in order to make it truly effective. We will begin by introducing our organization. We will then go over the characteristics of our province, the only officially bilingual province, the ineffectiveness of Part VII of the OLA-CA when it comes to federal- provincial agreements on health and we will conclude by making specific recommendations. *We use the abbreviations OLA-CA for the Canadian legislation and OLA-NB for our provincial legislation. LOI SUR LES LANGUES OFFICIELLES | 2 WHO ARE WE AND WHAT DO WE WANT? Égalité Santé en Français N.-B. inc. (Égalité Santé) is a rights advocacy agency incorporated in New Brunswick with expertise in defending health rights. Our agency was formed in the wake of the 2008 health reform carried out by the then Liberal government led by Premier Shawn Graham. As part of the reform, which we refer to as the “Murphy reform”, health minister Michael Murphy proposed reducing the number of regional health authorities from eight to two: Regional Health Authority A became Vitalité Health Network1 and Regional Health Authority B is now known as Horizon Health Network.2 Despite objections from the francophone community, Minister Murphy moved forward with his reform and created two regional health authorities. The problem was that one regional health authority was designated anglophone and the other was designated bilingual. Minister Murphy refused to acknowledge the existing francophone health authority, the Beauséjour Regional Health Authority,3 and the existence of several francophone hospitals, in the Acadian Peninsula in particular. Égalité Santé filed suit to uphold the rights of the francophone community in health, especially the right to have a francophone regional health authority. On April 8, 2010, Égalité Santé and the Government of New Brunswick reached an out-of-court settlement whereby:4 • The government recognized that francophones had the right to francophone health institutions • The government would recognize Regional Health Authority A as a health authority that operates in French • The government recognized the inequality in health services between the francophone community and the anglophone community _______________________________________ 1 https://www.vitalitenb.ca/en 2 http://en.horizonnb.ca/home.aspx 3 http://www.beausejour-nb.ca/Francais/home/ 4 https://www2.gnb.ca/content/gnb/en/departments/premier/news/news_release.2010.04.0494.html LOI SUR LES LANGUES OFFICIELLES | 3 • The government would be required to prepare a five-year catch-up plan with respect to health services at francophone institutions designed to ensure a fair distribution of health services in both linguistic communities in our province • The majority of members of the boards of directors at the regional health authorities would be elected in 2012 • The francophone and anglophone communities would be represented on the New Brunswick Health Council5 and that agency would have to take into account the interests and needs of the francophone community • The francophone and anglophone communities would be represented at FacilicorpNB (a non- clinical agency that is now part of Service NB)6 • Health regions would be revised to account for both linguistic communities • We would commit to withdrawing our suit against the province It should be noted that this settlement was a compromise by both parties to the dispute. It was clear that this settlement was the most we were going to get from the government and is the least we could accept under the circumstances. The Government of New Brunswick then made the following changes: • Recognized that both regional health authorities are responsible for improving health services delivery in French • Both regional health authorities will have to ensure that they continue to provide health services to the public in the official language of their choice • Changes to the Regional Health Authorities Act to recognize that Regional Health Authority A is an organisation that operates in French, thereby acknowledging that the regional health authority is a francophone organization with a responsibility to serve residents in the official language of their choice • The Minister of Health will have the authority to assign the designation university hospital centre and affiliated university hospital centre • The New Brunswick Health Council Act7 will be amended to acknowledge that the New Brunswick Health Council must include the needs of the linguistic communities in its mission. 5 https://www.nbhc.ca 6 http://facilicorpnb.ca/files/Info_Evolution_summer_2015.pdf 7 https://www.gnb.ca/legis/bill/FILE/56/2/Bill-35-e.htm LOI SUR LES LANGUES OFFICIELLES | 4 • The provincial government will also recommend that the New Brunswick Health Council consult the linguistic communities in the official language of their choice • More than half of the members of the board of directors (8 out of 15) of each regional health authority will be elected by universal suffrage as of 2012 • The rest of the board members will be appointed by the minister with consideration for specific communities of interest • Additional administrative changes will also be made to improve the health services provided to the francophone population • A five-year action plan will be prepared to ensure a fair distribution of health services in both regional health authorities in the province • Geographic regions currently assigned to each regional health authority will be revised in consultation with the communities served • The Department of Health8 will set up a committee to implement the strategic plan on official languages in the health sector • Part of the committee’s mandate will be to provide advice on accounting for the needs of official language communities in planning the health care system • The committee will include representatives from both regional health authorities • The next provincial health plan will include specific, measurable objectives for official languages • FacilicorpNB’s mandate will be changed to ensure that FacilicorpNB continues to communicate with the regional health authorities and their institutions in the language of their choice • The provincial government will change the FacilicorpNB shareholder structure to include representatives from both regional health authorities On November 30, 2012, history was made when the government published what it described as a “Plan for equitable health services”9 in the wake of the 2010 out-of-court settlement. We issued a public statement that this was the first time the government acknowledged that the two regional health authorities did not have the same range of health services, that the francophone regional health 8 https://www2.gnb.ca/content/gnb/en/departments/health.html 9 https://www2.gnb.ca/content/gnb/en/news/news_release.2012.11.1129.html LOI SUR LES LANGUES OFFICIELLES | 5 authority had fewer.10 We also said that this was just the first step, that by the end of the Plan the two regional health authorities would still not have the same range of health services: the gap would be narrowed, but not closed! That plan expired on March 31, 2018, and, as we predicted, the health services between the two regional health authorities are still not equal, far from it, as the table11 prepared by our organization in September 2017 shows. Since the 2010 out-of-court settlement, the Alward government (2010-2014) amended the Regional Health Authorities Act (RHAA), effectively reducing the board of directors’ authority by legislating that regional health authority executives would be appointed and serve at the discretion of the health minister. The minister also now has the power to appoint the chair of the board of directors of the regional health authority. For its part, the Gallant government (2014-2018), which criticized the changes made under the Conservatives, took the opportunity to dismiss the executive in place at the Vitalité Health Network.12 The Court of Queen's Bench ruled in favour of the dismissed executive confirming that it had been dismissed without just cause.13 On January 1, 2018, the Liberal government of Brian Gallant transferred management of the Extra-Mural Program (EMP)14 to Medavie Health Service15 thereby weakening the francophone regional health authority despite general opposition from both the francophone and anglophone communities. On June 13, 2017, Égalité Santé filed a notice of action with the Court of Queen’s Bench against the Province of New Brunswick. We called on the court to recognize: a. the constitutional right of the Acadian and francophone community to have distinct health care institutions over which it has full and exclusive control b. that the Acadian and francophone community has the right to health institutions of equal quality to those of the anglophone linguistic community. Since that time, we have been waiting for our day in court, but the provincial government is currently disputing our right to act on behalf of the francophone community despite the fact that we were recognized to do so in 2008 and were signatories of the out-of-court settlement in 2010. Many Acadian organizations and individuals support our case before the courts.16 10 http://www.egalitesante.com/communique-de-presse-egalite-sante-plan-de-repartition-equitabledes-services-de- soins-de-sante/ 11 http://www.egalitesante.com/infographie/ 12 https://ici.radio-canada.ca/nouvelle/694927/changement-directeur-general-reseau-sante-vitalite 13 https://ici.radio-canada.ca/nouvelle/1039665/fredericton-navait-pas-de-motif-valable-pour-conge- dier-rino-volpe- reconnait-la-cour 14 https://www2.gnb.ca/content/gnb/en/departments/health/news/news_release.2018.01.0022.html 15 https://www.medaviebc.ca/ 16 http://www.egalitesante.com/wp-content/uploads/2017-06-13-Avis-de-poursuite-déposé.pdf LOI SUR LES LANGUES OFFICIELLES | 6 NEW BRUNSWICK’S UNIQUE SITUATION The Official Languages Act of Canada (OLA-CA) does not reflect the statutory reality of New Brunswick.