Federal Court
Cour fédérale
Date : 20110713
Dockets: T-450-10
T-451-10
Citation: 2011 FC 876
[REVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 13, 2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
MICHEL THIBODEAU and LYNDA
THIBODEAU
Applicants
and
AIR CANADA
Respondent
and
COMMISSIONER OF OFFICIAL
LANGUAGES
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
Page: 2
TABLE OF CONTENTS
I. Issues 3
II. Facts and legislative framework 4
III. Analysis 16
A. Did Air Canada breach its linguistic duties towards the applicants? 16
B. What remedy is appropriate and just in the circumstances? 19
(1) Is it appropriate and just to award damages to the applicants? 24
(a) Does the Montreal Convention limit the Court’s remedial power to
award damages?
25
(b) Amount of damages 44
(2) Is it appropriate and just to make institutional orders against Air Canada? 46
(3) Is it appropriate and just to award punitive and exemplary damages? 73
IV. Costs 78
Page: 3
[1] This is an application made under subsection 77(1) of the Official Languages Act, R.S.C.
1985, c. 31 (4th Supp.) (OLA).
[2] Michel Thibodeau and Lynda Thibodeau (“the applicants” or “Mr. and Ms. Thibodeau”)
submit that the respondent, Air Canada, failed to fulfill its duties or obligations under Part IV of the
OLA to ensure them services in French, and are seeking damages in relief. They also submit that
Air Canada’s breaches of its official languages duties are systemic; therefore, they are asking the
Court to make institutional orders against Air Canada and to order it to pay exemplary and punitive
damages.
[3] The applicants have made separate applications, which were joined by an order of
Prothonotary Aronovitch, dated May 5, 2010. Furthermore, it was agreed at the hearing that only
Mr. Thibodeau would make representations, which would be entered in the file of his spouse,
Ms. Thibodeau.
I. Issues
[4] This application raises the following issues:
A. Did Air Canada breach its linguistic duties towards the applicants?
B. What remedies are appropriate and just in the circumstances?
(1) Is it appropriate and just to award damages to the applicants?
Page: 4
(2) Is it appropriate and just to make institutional orders against Air Canada?
(3) Is it appropriate and just to award exemplary and punitive damages?
II. Facts and legislative framework
[5] This application was filed after each applicant had filed eight complaints with the
Commissioner of Official Languages (the Commissioner) regarding the services they received from
Air Canada on two trips they made between January and May 2009. The applicants claimed that on
various occasions, at the Atlanta, Ottawa and Toronto airports and aboard three flights between
Canada and the United States, they did not receive the services in French to which they were
entitled.
[6] To properly grasp the nature of this dispute, it is useful to identify the legislation applicable
to Air Canada with regard to language rights.
[7] The OLA, which applies to federal institutions, gives concrete expression to the principle of
equality of Canada’s two official languages, which is enshrined at section 16 of the Canadian
Charter of Rights and Freedoms (the Charter), and the right of members of the public to
communicate with any central office in the official language of their choice, set out at section 20 of
the Charter. The courts have consistently held that the OLA has quasi-constitutional status (Canada
(Attorney General) v Viola, [1991] 1 FC 373 (available on QL); R. v Beaulac, [1999] 1 SCR 768
(available on CanLII); Lavigne v Canada (Office of the Commissioner of Official Languages), 2002
Page: 5
SCC 53, [2002] 2 SCR 773; DesRochers v Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194
[DesRochers]).
[8] According to section 2 of the OLA, the purpose of this statute is to ensure respect for
English and French as official languages, their equality of status and equal rights and privileges
concerning their use in all federal institutions with respect to various aspects of federal institutions’
activities, including communications with, or the provision of services to, the public.
[9] The OLA concerns the federal institutions identified at section 3 of this statute.
[10] Air Canada was initially created as a Crown corporation and, as such, was subject to the
Official Languages Act, R.S.C. 1970, c. O-2 and, then, to the OLA, which replaced it. In 1988, Air
Canada was privatized, and the Air Canada Public Participation Act, R.S.C. 1985, c. 35 (4th Supp.)
(ACPPA) provided for the continuance of Air Canada under the Canada Business Corporations
Act. Otherwise, under section 10 of the ACPPA, Air Canada is still subject to the OLA.
Subsections 1 and 2 of section 10 of the ACPPA read as follows:
10. (1) The Official Languages
Act applies to the Corporation.
Duty re subsidiaries
(2) Subject to subsection (5), if
air services, including
incidental services, are provided
or made available by a
subsidiary of the Corporation,
10. (1) La Loi sur les langues
officielles s’applique à la
Société.
Communication avec les
voyageurs
(2) Sous réserve du paragraphe
(5), la Société est tenue de
veiller à ce que les services
aériens, y compris les services
connexes, offerts par ses filiales
Page: 6
the Corporation has the duty to
ensure that any of the
subsidiary’s customers can
communicate with the
subsidiary in respect of those
services, and obtain those
services from the subsidiary, in
either official language in any
case where those services, if
provided by the Corporation,
would be required under Part
IV of the Official Languages
Act to be provided in either
official language.
à leurs clients le soient, et à ce
que ces clients puissent
communiquer avec celles-ci
relativement à ces services,
dans l’une ou l’autre des
langues officielles dans le cas
où, offrant elle-même les
services, elle serait tenue, au
titre de la partie IV de la Loi sur
les langues officielles, à une
telle obligation.
[11] Part IV of the OLA applies to communications with and the provision of services to the
public. This part includes the following provisions:
Rights relating to language of
communication
21. Any member of the public
in Canada has the right to
communicate with and to
receive available services from
federal institutions in
accordance with this Part.
Where communications and
services must be in both official
languages
22. Every federal institution has
the duty to ensure that any
member of the public can
communicate with and obtain
available services from its head
or central office in either
official language, and has the
same duty with respect to any
of its other offices or facilities
(a) within the National Capital
Region; or
Droits en matière de
communication
21. Le public a, au Canada, le
droit de communiquer avec les
institutions fédérales et d’en
recevoir les services
conformément à la présente
partie.
Langues des communications et
services
22. Il incombe aux institutions
fédérales de veiller à ce que le
public puisse communiquer
avec leur siège ou leur
administration centrale, et en
recevoir les services, dans l’une
ou l’autre des langues
officielles. Cette obligation vaut
également pour leurs bureaux
— auxquels sont assimilés,
pour l’application de la présente
partie, tous autres lieux où ces
Page: 7
(b) in Canada or elsewhere,
where there is significant
demand for communications
with and services from that
office or facility in that
language.
Travelling public
23. (1) For greater certainty,
every federal institution that
provides services or makes
them available to the travelling
public has the duty to ensure
that any member of the
travelling public can
communicate with and obtain
those services in either official
language from any office or
facility of the institution in
Canada or elsewhere where
there is significant demand for
those services in that language.
Services provided pursuant to a
contract
(2) Every federal institution has
the duty to ensure that such
services to the travelling public
as may be prescribed by
regulation of the Governor in
Council that are provided or
made available by another
person or organization pursuant
to a contract with the federal
institution for the provision of
those services at an office or
facility referred to in subsection
(1) are provided or made
available, in both official
languages, in the manner
prescribed by regulation of the
Governor in Council.
institutions offrent des services
— situés soit dans la région de
la capitale nationale, soit là où,
au Canada comme à l’étranger,
l’emploi de cette langue fait
l’objet d’une demande
importante.
Voyageurs
23. (1) Il est entendu qu’il
incombe aux institutions
fédérales offrant des services
aux voyageurs de veiller à ce
que ceux-ci puissent, dans l’une
ou l’autre des langues
officielles, communiquer avec
leurs bureaux et en recevoir les
services, là où, au Canada
comme à l’étranger, l’emploi de
cette langue fait l’objet d’une
demande importante.
Services conventionnés
(2) Il incombe aux institutions
fédérales de veiller à ce que,
dans les bureaux visés au
paragraphe (1), les services
réglementaires offerts aux
voyageurs par des tiers
conventionnés par elles à cette
fin le soient, dans les deux
langues officielles, selon les
modalités réglementaires.
[…]
Page: 8
. . .
Where services provided on
behalf of federal institutions
25. Every federal institution has
the duty to ensure that, where
services are provided or made
available by another person or
organization on its behalf, any
member of the public in Canada
or elsewhere can communicate
with and obtain those services
from that person or organization
in either official language in
any case where those services,
if provided by the institution,
would be required under this
Part to be provided in either
official language.
Fourniture dans les deux
langues
25. Il incombe aux institutions
fédérales de veiller à ce que,
tant au Canada qu’à l’étranger,
les services offerts au public par
des tiers pour leur compte le
soient, et à ce qu’il puisse
communiquer avec ceux-ci,
dans l’une ou l’autre des
langues officielles dans le cas
où, offrant elles-mêmes les
services, elles seraient tenues,
au titre de la présente partie, à
une telle obligation.
[12] According to section 22 of the OLA, federal institutions are required to communicate and
provide services in both official languages where there is significant demand for those services in
the minority language and where it is warranted by the nature of the office or facility. Under the
Official Languages Regulations, SOR/92-48 (the Regulations), there is significant demand for the
use of an official language in an airport where over a year, the total number of emplaned and
deplaned passengers at that airport is at least one million and, for the other airports, where over a
year at least 5 percent of the demand from the public for services at that airport is in that language
(subsections 7(1) and 7(3)). With regard to services on board flights, the Regulations provide that
some flights are automatically designated as routes on which there is significant demand in the
minority language, whereas others are so designated in accordance with the volume of demand. In
that regard, subsection 7(2) and paragraph 7(4)(c) of the Regulations provide as follows:
(2) For the purposes of
subsection 23(1) of the Act,
(2) Pour l’application du
paragraphe 23(1) de la Loi,
Page: 9
there is significant demand for
services to the travelling public
from an office or facility of a
federal institution in an official
language where the office or
facility provides those services
on a route and on that route
over a year at least 5 percent of
the demand from the travelling
public for services is in that
language.
. . .
(4) For the purposes of
subsection 23(1) of the Act,
there is significant demand for
services to the travelling public
from an office or facility of a
federal institution in both
official languages where
. . .
(c) the office or facility
provides those services on
board an aircraft
(i) on a route that starts, has an
intermediate stop or finishes at
an airport located in the
National Capital Region, the
CMA of Montreal or the City of
Moncton or in such proximity
to that Region, CMA or City
that it primarily serves that
Region, CMA or City,
(ii) on a route that starts and
l’emploi d’une langue officielle
fait l’objet d’une demande
importante à un bureau d’une
institution fédérale en ce qui a
trait aux services offerts aux
voyageurs lorsque le bureau
offre ces services sur un trajet et
qu’au moins cinq pour cent de
la demande de services faite par
les voyageurs sur ce trajet, au
cours d’une année, est dans
cette langue.
[…]
(4) Pour l’application du
paragraphe 23(1) de la Loi,
l’emploi des deux langues
officielles fait l’objet d’une
demande importante à un
bureau d’une institution
fédérale en ce qui a trait aux
services offerts aux voyageurs,
dans l’une ou l’autre des
circonstances suivantes :
[…]
c) le bureau offre les services à
bord d’un aéronef :
(i) soit sur un trajet dont la tête
de ligne, une escale ou le
terminus est un aéroport situé
dans la région de la capitale
nationale, dans la région
métropolitaine de recensement
de Montréal ou dans la ville de
Moncton, ou un aéroport situé à
proximité de l’une de ces
régions ou ville qui la dessert
principalement,
Page: 10
finishes at airports located in
the same province and that
province has an English or
French linguistic minority
population that is equal to at
least 5 per cent of the total
population in the province, or
(iii) on a route that starts and
finishes at airports located in
different provinces and each
province has an English or
French linguistic minority
population that is equal to at
least 5 per cent of the total
population in the province;
(ii) soit sur un trajet dont la tête
de ligne et le terminus sont des
aéroports situés dans une même
province dont la population de
la minorité francophone ou
anglophone représente au moins
cinq pour cent de l’ensemble de
la population de la province,
(iii) soit sur un trajet dont la tête
de ligne et le terminus sont des
aéroports situés dans deux
provinces dont chacune a une
population de la minorité
francophone ou anglophone
représentant au moins cinq pour
cent de l’ensemble de la
population de la province;
[13] Air Canada acknowledges that it is subject to the OLA and that, under section 25 of the
OLA, it is responsible for the services provided by Jazz, with which it has a capacity purchase
agreement.1 The flights identified as those on which there is significant demand for services in
French because at least 5 percent of the travelling public on that route requests service in that
language are determined by surveys conducted every three years by Air Canada under the Treasury
Board’s supervision.
[14] The alleged breaches of Air Canada’s language duties, which led to this dispute, occurred on
two trips made by the applicants, which involved routes between Canada and the United States. The
applicants made a first round trip between Ottawa and Atlanta, Georgia, with the following flight
itineraries:
1 Air Canada purchases substantially all of the seat capacity of Jazz, which is essentially a contract carrier for Air
Canada. Jazz resulted from the consolidation of regional carriers that were subsidiaries of Air Canada. In 2001, the
regional carriers Air BC, Air Nova, Air Ontario and Canadian Regional came together to form Air Canada Regional Inc.,
Page: 11
DATE FLIGHT ORIGIN DESTINATION
January 23, 2009 AC457 Ottawa Toronto
January 23, 2009 AC8627 Toronto Atlanta
DATE FLIGHT ORIGIN DESTINATION
February 1, 2009 AC8622 Atlanta Toronto
February 1, 2009 AC484 Toronto Ottawa
[15] The applicants submit that, on five occasions on this trip, Air Canada breached its duty to
provide services in French to them:
• No services in French on board (Jazz-operated) flight AC8627 flying the Toronto-Atlanta
route on January 23, 2009;
• No services in French at the check-in counter for (Jazz-operated) flight AC8622 at the
Atlanta airport on February 1, 2009;
• No services in French at the boarding gate for (Jazz operated) flight AC8622 at the Atlanta
airport on February 1, 2009;
• No services in French on board flight AC8622 flying the Atlanta-Toronto route on
February 1, 2009;
• Announcement to passengers made in English only regarding a change of baggage carousel
at the Ottawa airport on February 1, 2009.
a subsidiary of Air Canada. In 2002, Air Canada Regional Inc. became Air Canada Jazz. In February 2006, Jazz became
a public corporation.
Page: 12
[16] The applicants made a second trip, a round trip between Toronto and St. Maarten with a
connection in Philadelphia on the departing flight and in Charlotte, North Carolina, on the returning
flight.
DATE FLIGHT ORIGIN DESTINATION
May 2, 2009 AC7916 Toronto Philadelphia
May 3, 2009 US1209 Philadelphia St. Maarten
DATE FLIGHT ORIGIN DESTINATION
May 11, 2009 US1556 St. Maarten Charlotte
May 12, 2009 AC7923 Charlotte Toronto
[17] The applicants submit that, on two occasions on this trip, Air Canada breached its duty to
ensure that they received services in French:
• No services in French on board (Jazz-operated) flight AC7923 flying the route from
Charlotte to Toronto on May 12, 2009;
• Announcement to passengers regarding baggage collection at the Toronto airport on
May 12, 2009, made in English only.
[18] The applicants filed a complaint with the Commissioner regarding each of these incidents.
[19] The Commissioner plays an important role in official languages protection. Its mandate is
set out at section 56 of the OLA:
56. (1) It is the duty of the
Commissioner to take all
56. (1) Il incombe au
commissaire de prendre, dans le
Page: 13
actions and measures within the
authority of the Commissioner
with a view to ensuring
recognition of the status of each
of the official languages and
compliance with the spirit and
intent of this Act in the
administration of the affairs of
federal institutions, including
any of their activities relating to
the advancement of English and
French in Canadian society.
cadre de sa compétence, toutes
les mesures visant à assurer la
reconnaissance du statut de
chacune des langues officielles
et à faire respecter l’esprit de la
présente loi et l’intention du
législateur en ce qui touche
l’administration des affaires des
institutions fédérales, et
notamment la promotion du
français et de l’anglais dans la
société canadienne.
[20] Section 58 of the OLA gives the Commissioner the authority to investigate any complaint
regarding an act or omission to the effect that, in any particular instance or case, the status of an
official language was not or is not being recognized, any provision of any Act of Parliament or
regulation relating to the status or use of the official languages was not or is not being complied
with, or the spirit and intent of the OLA was not or is not being complied with.
[21] Upon completion of his investigation, the Commissioner may report his or her opinion and
the reasons therefore and make such recommendations as he or she sees fit (sections 63 and 64).
However, the Commissioner does not have the authority to award remedies.
[22] In this case, the Commissioner did not accept the complaints as to the absence of services in
French at the Air Canada check-in counter and gate at the Atlanta airport because it was not an
airport where there is significant demand requiring the provision of services in French. The
Commissioner also did not accept the complaint regarding the announcement made to passengers at
the Ottawa airport because the Commissioner was of the opinion that he could not confirm whether
Page: 14
Air Canada had committed the impugned acts. However, the Commissioner did confirm that the
other complaints filed by the applicants had merit.
[23] According to subsection 77(1) of the OLA, a remedy is available to any person who has
made a complaint to the Commissioner in respect of a right or duty provided by various provisions
of the OLA, including the sections under Part IV:
77. (1) Any person who has
made a complaint to the
Commissioner in respect of a
right or duty under sections 4 to
7, sections 10 to 13 or Part IV,
V or VII, or in respect of
section 91, may apply to the
Court for a remedy under this
Part.
77. (1) Quiconque a saisi le
commissaire d’une plainte
visant une obligation ou un
droit prévus aux articles 4 à 7 et
10 à 13 ou aux parties IV, V, ou
VII, ou fondée sur l’article 91,
peut former un recours devant
le tribunal sous le régime de la
présente partie.
[24] Section 76 specifies that the Federal Court has jurisdiction to hear this application.
[25] After the Commissioner’s report was filed, the applicants made this application.
[26] Subsection 77(4) of the OLA gives the Court jurisdiction to grant a remedy.
(4) Where, in proceedings
under subsection (1), the Court
concludes that a federal
institution has failed to comply
with this Act, the Court may
grant such remedy as it
considers appropriate and just
in the circumstances.
(4) Le tribunal peut, s’il estime
qu’une institution fédérale ne
s’est pas conformée à la
présente loi, accorder la
réparation qu’il estime
convenable et juste eu égard
aux circonstances.
Page: 15
[27] Under subsection 78(1) of the OLA, the Commissioner has the power to apply to the Court
for a remedy after carrying out an investigation on a complaint. The Commissioner may also apply
for leave to intervene in proceedings (subsection 78(3)). In this case, the Commissioner applied for,
and was granted, intervener status.
[28] In Forum des Maires de la Péninsule Acadienne v Canada (Canadian Food Inspection
Agency), 2004 FCA 263, [2004] 4 FCR 276 [Forum des maires],2 the Federal Court of Appeal
discussed the respective mandates of the Commissioner and the Court and the nature of the remedy
provided for by section 77 of the OLA. Justice Décary, writing for the Court, made the following
comments:
16 The Commissioner, it is important to keep in mind, is not a
tribunal. She does not, strictly speaking, render a decision; she
receives complaints, she conducts an inquiry, and she makes a report
that she may accompany with recommendations (subsections 63(1),
63(3)). If the federal institution in question does not implement the
report or the recommendations, the Commissioner may lodge a
complaint with the Governor in Council (subsection 65(1)) and, if the
latter does not take action either, the Commissioner may lodge a
complaint with Parliament (subsection 65(3)). The remedy, at that
level, is political.
17 However, to ensure that the Official Languages Act has some
teeth, that the rights or obligations it recognizes or imposes do not
remain dead letters, and that the members of the official language
minorities are not condemned to unceasing battles with no
guarantees at the political level alone, Parliament has created a
“remedy” in the Federal Court that the Commissioner herself
(section 78) or the complainant (section 77) may use. This remedy,
the scope of which I will examine later, is designed to verify the
merits of the complaint, not the merits of the Commissioner’s report
(subsection 77(1)), and, where applicable, to secure relief that is
appropriate and just in the circumstances (subsection 77(4)).
. . .
Page: 16
[29] In the light of the relevant enactments, I must first ascertain whether the applicants’
complaints have merit and whether Air Canada breached its duty to ensure that the applicants
received services in French in accordance with Part IV of the OLA. If so, I will have to decide
which remedy is appropriate and just.
III. Analysis
A. Did Air Canada breach its linguistic duties towards the applicants?
[30] The application filed by Mr. and Ms. Thibodeau initially concerned all of the complaints
they filed with the Commissioner. In the course of proceedings, Air Canada admitted certain
breaches and Mr. and Ms. Thibodeau withdrew some of their allegations.3 As such, five incidents
remain at issue in this case, in respect of four of which Air Canada acknowledges having breached
its duty to provide services in French. These four incidents are the following:
• No services in French on board flight AC8627 flying the Toronto-Atlanta route on
January 23, 2009: Air Canada acknowledges that there was no bilingual flight attendant on
this flight, although it was a flight on which there was significant demand for services in
French.
• No translation of an announcement made in English by the pilot concerning the arrival time
and weather on flight AC8622 flying the Atlanta-Toronto route on February 1, 2009: Air
2 These comments were subsequently reiterated by the Supreme Court in DesRochers
3 The withdrawn allegations concerned the complaints made regarding the services at the Air Canada check-in counter
and gate at the Atlanta airport. The Commissioner concluded that the complaints were without merit because the Atlanta
Page: 17
Canada acknowledges that the announcement should have been translated by the flight
attendant (who was bilingual) because it was a flight on which there was significant demand
for services in French.
• No services in French on board flight AC7923 flying the Charlotte-Toronto route on
May 12, 2009. Air Canada acknowledges that there was no bilingual flight attendant on this
flight and that it was a flight on which there was significant demand for services in French.
• Announcement made in English only to passengers concerning baggage collection at the
Toronto airport on May 12, 2009: Air Canada admits that this announcement should have
been made in English and French because the Toronto airport is an airport where there is
significant demand for services in French.
[31] Air Canada, however, denies having breached its duties with respect to the announcement
made to passengers concerning a change of baggage carousel at the Ottawa airport on February 1,
2009. Air Canada denies that it was its responsibility to make those announcements and submits that
the airport authority had this responsibility since the airlines did not have access to the transmission
device to make those announcements themselves. That being said, Air Canada acknowledges that
there is significant demand for services in French at the Ottawa airport and submits that the situation
has now been corrected and that it can now make the announcements to passengers itself.
[32] The Commissioner had not admitted that complaint because he had been unable to
determine, with absolute certainty, whether the airport authority or Air Canada had committed the
offence. The Commissioner wrote the following in his report:
airport was not identified as being an airport at which there is significant demand for services in French and, therefore,
Air Canada did not have a duty to provide services in French in that location.
Page: 18
[TRANSLATION]
. . .
. . . We received confirmation from Air Canada that, since the
announcement reported malfunctioning equipment, it had been made
by a representative of the Ottawa Airport Authority rather than by the
employees at the Air Canada baggage counter. Therefore, we
informed you by letter on June 16, 2009, that responsibility for this
complaint was transferred to the Ottawa Airport Authority. Our
investigation of this institution showed that Air Canada is responsible
for announcements concerning baggage collection. In short, from the
facts garnered, we cannot determine with certainty which institution
committed the offence you described. However, the investigation did
reveal that neither Air Canada management at this airport nor the
Ottawa Airport Authority was very well versed in their respective
official language responsibilities. After our involvement in this file,
we asked the Air Canada manager at the Ottawa airport and the
person in charge of linguistic matters at the Ottawa Airport Authority
to meet in order to clarify Air Canada’s linguistic duties on airport
premises.
. . .
[33] I agree with the Commissioner; given the evidence, it is not possible to decide whether or
not Air Canada breached its duties when this incident occurred.
[34] However, I conclude that, in the light of Air Canada’s admissions, it did breach its duty to
provide services in French four times, three times during a flight and once when making the
baggage collection announcement at the Toronto airport.
[35] Having concluded that Air Canada breached its duties under the OLA, this Court must now
examine its remedial power and the relief sought by the applicants.
Page: 19
B. What remedy is appropriate and just in the circumstances?
[36] The language of subsection 77(4) of the OLA and of subsection 24(1) of the Charter is the
same language and the parties agree that the principles of interpretation applying to subsection 24(1)
of the Charter may be usefully followed with regard to the scope of the Court’s power to grant a
remedy under subsection 77(4) of the OLA. In Forum des maires, at paragraph 56, the Federal
Court of Appeal also adopted this view.
[37] In DesRochers, above, Justice Charron reiterated as follows, at para 31, the principles that
must guide the courts in their interpretation of the provisions of the OLA devoted to language rights:
Before considering the provisions at issue in the case at bar, it will be
helpful to review the principles that govern the interpretation of
language rights provisions. Courts are required to give language
rights a liberal and purposive interpretation. This means that the
relevant provisions must be construed in a manner that is consistent
with the preservation and development of official language
communities in Canada (R. v. Beaulac, [1999] 1 S.C.R. 768, at
para. 25). Indeed, on several occasions this Court has reaffirmed that
the concept of equality in language rights matters must be given true
meaning (see, for example, Beaulac, at paras. 22, 24 and 25;
Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1
S.C.R. 3, at para. 31). Substantive equality, as opposed to formal
equality, is to be the norm, and the exercise of language rights is not
to be considered a request for accommodation. . . .
[38] The Supreme Court of Canada has made many pronouncements on the scope and
interpretation of subsection 24(1) of the Charter. In R v 974649 Ontario Inc., 2001 SCC 81, at
para 18, [2001] 3 SCR 575 [Dunedin], the Supreme Court stated that subsection 24(1) of the Charter
called for a broad and purposive interpretation, that it formed a vital part of the Charter and that it
must be construed generously, in a manner that best ensures the attainment of its objects. The Court
Page: 20
also noted that it was a remedial provision commanding a large and liberal interpretation and
reiterated that the language of subsection 24(1) of the Charter “appears to confer the widest possible
discretion on a court to craft remedies for violations of Charter rights”. The Court also emphasized
the importance of interpreting subsection 24(1) so as to arrive at a full, effective and meaningful
remedy. In this regard, the Court made the following remarks:
19 . . . If the Court’s past decisions concerning s. 24(1) can be
reduced to a single theme, it is that s. 24(1) must be interpreted in a
manner that provides a full, effective and meaningful remedy for
Charter violations: Mills, supra, at pp. 881-82 (per Lamer J.), p. 953
(per McIntyre J.); Mooring, supra, at paras. 50-52 (per Major J.). As
Lamer J. observed in Mills, s. 24(1) “establishes the right to a remedy
as the foundation stone for the effective enforcement of Charter
rights” (p. 881). Through the provision of an enforcement
mechanism, s. 24(1) “above all else ensures that the Charter will be a
vibrant and vigorous instrument for the protection of the rights and
freedoms of Canadians” (p. 881).
20 Section 24(1)’s interpretation necessarily resonates across all
Charter rights, since a right, no matter how expansive in theory, is
only as meaningful as the remedy provided for its breach. . . .
[39] In Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3
[Doucet-Boudreau], the Supreme Court considered the nature of the remedies that are possible
under subsection 24(1) of the Charter in a case where the right to education in the minority language
was at issue. The trial judge had found that the government had failed to prioritize the section 23
Charter rights and had delayed complying with its duties, despite reports showing that the rate of
assimilation had reached a critical level. The judge ruled that there had been a section 23 Charter
violation and ordered the provincial government and the school board to make their “best efforts” to
provide homogeneous French-language school facilities and programs by certain deadlines. The
judge also retained jurisdiction to receive reports on the authorities’ efforts. The dispute before the
Page: 21
Supreme Court concerned the extent of the remedial power set forth at subsection 24(1) of the
Charter.
[40] The Court gave particular attention to the meaning of the words “appropriate and just in the
circumstances” and stated that the determination of an appropriate and just order “calls on the judge
to exercise a discretion based on his or her careful perception of the nature of the right and of the
infringement, the facts of the case, and the application of the relevant legal principles” (para 52).
The Court refrained from articulating a detailed definition of this phrase but did set out a certain
number of general, relevant factors. The Court made the following remarks:
55 First, an appropriate and just remedy in the circumstances of
a Charter claim is one that meaningfully vindicates the rights and
freedoms of the claimants. Naturally, this will take account of the
nature of the right that has been violated and the situation of the
claimant. A meaningful remedy must be relevant to the experience
of the claimant and must address the circumstances in which the right
was infringed or denied. . . .
56 Second, an appropriate and just remedy must employ means
that are legitimate within the framework of our constitutional
democracy. As discussed above, a court ordering a Charter remedy
must strive to respect the relationships with and separation of
functions among the legislature, the executive and the judiciary. . . .
The essential point is that the courts must not, in making orders
under s. 24(1), depart unduly or unnecessarily from their role of
adjudicating disputes and granting remedies that address the matter
of those disputes.
57 Third, an appropriate and just remedy is a judicial one which
vindicates the right while invoking the function and powers of a
court. It will not be appropriate for a court to leap into the kinds of
decisions and functions for which its design and expertise are
manifestly unsuited. The capacities and competence of courts can be
inferred, in part, from the tasks with which they are normally charged
and for which they have developed procedures and precedent.
58 Fourth, an appropriate and just remedy is one that, after
ensuring that the right of the claimant is fully vindicated, is also fair
Page: 22
to the party against whom the order is made. The remedy should not
impose substantial hardships that are unrelated to securing the right.
59 Finally, it must be remembered that s. 24 is part of a
constitutional scheme for the vindication of fundamental rights and
freedoms enshrined in the Charter. As such, s. 24, because of its
broad language and the myriad of roles it may play in cases, should
be allowed to evolve to meet the challenges and circumstances of
those cases. That evolution may require novel and creative features
when compared to traditional and historical remedial practice
because tradition and history cannot be barriers to what reasoned and
compelling notions of appropriate and just remedies demand. In
short, the judicial approach to remedies must remain flexible and
responsive to the needs of a given case.
[41] More recently, the Supreme Court decided in Vancouver (City) v Ward, 2010 SCC 27,
[2010] 2 SCR 28 [Ward] that under subsection 24(1) of the Charter, damages could be awarded for
a Charter violation.
[42] The principles set out by the Supreme Court in Doucet-Boudreau, above, were followed by
the Federal Court of Appeal with regard to the application of the OLA in Forum des maires. In that
decision, the Federal Court of Appeal also stated that although the alleged violations must be
assessed as of the time of the filing of the complaint, the appropriate relief under subsection 77(4) of
the OLA must be determined in view of the situation at the time the case is heard. The Court may
therefore take account of developments in the situation and the corrective measures that have been
taken. In that regard, Justice Décary made the following remarks:
19 There are some important implications to the fact that the
remedy under Part X is basically similar to an action.
20 For example, the judge hears the matter de novo and is not
limited to the evidence provided during the Commissioner’s
investigation. The remedy is constantly shifting in the sense that even
if the merit of the complaint is determined as it existed at the time of
the alleged breach, the remedy, if there is one that is appropriate and
Page: 23
just, must be adapted to the circumstances that prevail at the time
when the matter is adjudicated. The remedy will vary according to
whether or not the breach continues.
[43] In the light of these principles, what, then, are the just and appropriate remedies in the case
at bar? The applicants are seeking a number of remedies. First, they are seeking a declaratory
judgment that Air Canada breached its duties under the OLA and violated their language rights, a
letter of apology and damages. The applicants also submit that Air Canada’s breaches of its
linguistic duties are systemic and they are asking the Court to take this element into account in
determining an appropriate and just remedy. In that respect, they are asking the Court to make
institutional orders against Air Canada and to order it to pay punitive and exemplary damages.
[44] Air Canada does not object to this Court’s rendering a declaratory judgment to the effect
that it breached its language duties towards the applicants. It also consents to give the applicants a
letter of apology. Indeed, the applicants and Air Canada have submitted draft letters of apology to
me. However, Air Canada objects to any further remedy and denies any systemic problems.
[45] I will deal with the remedies that are in dispute.
(1) Is it appropriate and just to award damages to the applicants?
[46] Citing Ward, the applicants are seeking $5,000 for each violation for a total of $25,000.4
They are also relying on Morten v Air Canada, 2009 CHRT 3 (available on CanLII), in which the
4 In that case, the violation of the claimant’s constitutional rights concerned a strip search for which the trial judge had
awarded $5,000. The Supreme Court considered this amount appropriate.
Page: 24
Canadian Human Rights Tribunal awarded $10,000 for pain and suffering resulting from an act of
discrimination by Air Canada.5
[47] Air Canada, for its part, submits that the Court’s power to award damages is limited by the
Montreal Convention, which, it alleges, excludes any possibility of awarding damages for the
breaches that occurred during the international flights taken by the applicants. Thus, it is submitted
that the Court only has the power to award damages for the breach related to the passenger
announcement at the Toronto airport.
(a) Does the Montreal Convention limit the Court’s remedial power to award damages?
[48] The Montreal Convention is an international agreement providing for a uniform liability
scheme for international air carriers and users of means of international carriage by air. The
Montreal Convention’s predecessor was another international agreement, the Warsaw Convention,
signed by a number of countries in 1929. That agreement instituted a unified liability regime for the
international carriage of passengers, baggage and cargo in lieu of the domestic law of each signatory
country. Among other things, this regime subjected air carriers to a set of rules and strict liability in
the event of death or bodily injury resulting from an accident occurring during international
carriage, loss or theft of baggage, loss of cargo or delayed flights.
[49] The Warsaw Convention, signed by Canada, was incorporated into domestic Canadian law
through the Carriage by Air Act, R.S.C., 1985, c. C-26. That convention was then amended a few
5 In this matter, Air Canada had not allowed the complainant, who has visual and hearing disabilities, to travel
unaccompanied.
Page: 25
times and, in 1999, replaced by the Montreal Convention, which came into force in
November 2003. The Carriage by Air Act was amended in December 2001 so that Canadian
authorities could ratify and adopt the Montreal Convention, which is thus an update of the Warsaw
Convention. This convention maintains the principle of a uniform liability regime for air carriers,
although it changes some of the conditions thereof.
[50] Like the Warsaw Convention, the Montreal Convention sets out a limited set of
circumstances which can give rise to compensation.
[51] The following provisions of the Convention are relevant:
CONVENTION FOR THE
UNIFICATION OF CERTAIN
RULES FOR
INTERNATIONAL
CARRIAGE BY AIR
THE STATES PARTIES TO
THIS CONVENTION
RECOGNIZING the significant
contribution of the Convention
for the Unification of Certain
Rules Relating to International
Carriage by Air signed in
Warsaw on 12 October 1929,
hereinafter referred to as the
“Warsaw Convention”, and
other related instruments to the
harmonization of private
international air law;
RECOGNIZING the need to
modernize and consolidate the
Warsaw Convention and related
CONVENTION POUR
L’UNIFICATION DE
CERTAINES RÈGLES
RELATIVES AU
TRANSPORT AÉRIEN
INTERNATIONAL
RECONNAISSANT
l’importante contribution de la
Convention pour l’unification
de certaines règles relatives au
transport aérien international,
signée à Varsovie le 12 octobre
1929, ci-après appelée la «
Convention de Varsovie » et
celle d’autres instruments
connexes à l’harmonisation du
droit aérien international privé,
RECONNAISSANT la
nécessité de moderniser et de
Page: 26
instruments;
RECOGNIZING the
importance of ensuring
protection of the interests of
consumers in international
carriage by air and the need for
equitable compensation based
on the principle of restitution;
REAFFIRMING the
desirability of an orderly
development of international air
transport operations and the
smooth flow of passengers,
baggage and cargo in
accordance with the principles
and objectives of the
Convention on International
Civil Aviation, done at Chicago
on 7 December 1944;
CONVINCED that collective
State action for further
harmonization and codification
of certain rules governing
international carriage by air
through a new Convention is
the most adequate means of
achieving an equitable balance
of interests;
. . .
Article 1 — Scope of
Application
1. This Convention applies to
all international carriage of
persons, baggage or cargo
performed by aircraft for
refondre la Convention de
Varsovie et les instruments
connexes,
RECONNAISSANT
l’importance d’assurer la
protection des intérêts des
consommateurs dans le
transport aérien international et
la nécessité d’une
indemnisation équitable fondée
sur le principe de réparation,
RÉAFFIRMANT l’intérêt
d’assurer le développement
d’une exploitation ordonnée du
transport aérien international et
un acheminement sans heurt
des passagers, des bagages et
des marchandises,
conformément aux principes et
aux objectifs de la Convention
relative à l’aviation civile
internationale faite à Chicago le
7 décembre 1944,
CONVAINCUS que l’adoption
de mesures collectives par les
États en vue d’harmoniser
davantage et de codifier
certaines règles régissant le
transport aérien international est
le meilleur moyen de réaliser un
équilibre équitable des intérêts,
[…]
Article 1 — Champ
d’application
1. La présente convention
s’applique à tout transport
international de personnes,
bagages ou marchandises,
effectué par aéronef contre
Page: 27
reward. It applies equally to
gratuitous carriage by aircraft
performed by an air transport
undertaking.
2. For the purposes of this
Convention, the expression
international carriage means
any carriage in which,
according to the agreement
between the parties, the place of
departure and the place of
destination, whether or not
there be a break in the carriage
or a transhipment, are situated
either within the territories of
two States Parties, or within the
territory of a single State Party
if there is an agreed stopping
place within the territory of
another State, even if that State
is not a State Party. Carriage
between two points within the
territory of a single State Party
without an agreed stopping
place within the territory of
another State is not
international carriage for the
purposes of this Convention.
. . .
Chapter III
Liability of the Carrier and
Extent of Compensation for
Damage
Article 17 — Death and Injury
of Passengers — Damage to
Baggage
1. The carrier is liable for
damage sustained in case of
rémunération. Elle s’applique
également aux transports
gratuits effectués par aéronef
par une entreprise de transport
aérien.
2. Au sens de la présente
convention, l’expression
transport international s’entend
de tout transport dans lequel,
d’après les stipulations des
parties, le point de départ et le
point de destination, qu’il y ait
ou non interruption de transport
ou transbordement, sont situés
soit sur le territoire de deux
États parties, soit sur le
territoire d’un seul État partie si
une escale est prévue sur le
territoire d’un autre État, même
si cet État n’est pas un État
partie. Le transport sans une
telle escale entre deux points du
territoire d’un seul État partie
n’est pas considéré comme
international au sens de la
présente convention.
[…]
Chapitre III
Responsabilité du transporteur
et étendue de l’indemnisation
du préjudice
Article 17 — Mort ou lésion
subie par le passager —
Dommage causé aux bagages
1. Le transporteur est
responsable du préjudice
Page: 28
death or bodily injury of a
passenger upon condition only
that the accident which caused
the death or injury took place
on board the aircraft or in the
course of any of the operations
of embarking or disembarking.
2. The carrier is liable for
damage sustained in case of
destruction or loss of, or of
damage to, checked baggage
upon condition only that the
event which caused the
destruction, loss or damage
took place on board the aircraft
or during any period within
which the checked baggage was
in the charge of the carrier.
However, the carrier is not
liable if and to the extent that
the damage resulted from the
inherent defect, quality or vice
of the baggage. In the case of
unchecked baggage, including
personal items, the carrier is
liable if the damage resulted
from its fault or that of its
servants or agents.
. . .
Article 18 — Damage to Cargo
1. The carrier is liable for
damage sustained in the event
of the destruction or loss of, or
damage to, cargo upon
condition only that the event
which caused the damage so
survenu en cas de mort ou de
lésion corporelle subie par un
passager, par cela seul que
l’accident qui a causé la mort
ou la lésion s’est produit à bord
de l’aéronef ou au cours de
toutes opérations
d’embarquement ou de
débarquement.
2. Le transporteur est
responsable du dommage
survenu en cas de destruction,
perte ou avarie de bagages
enregistrés, par cela seul que le
fait qui a causé la destruction, la
perte ou l’avarie s’est produit à
bord de l’aéronef ou au cours de
toute période durant laquelle le
transporteur avait la garde des
bagages enregistrés. Toutefois,
le transporteur n’est pas
responsable si et dans la mesure
où le dommage résulte de la
nature ou du vice propre des
bagages. Dans le cas des
bagages non enregistrés,
notamment des effets
personnels, le transporteur est
responsable si le dommage
résulte de sa faute ou de celle de
ses préposés ou mandataires.
[…]
Article 18 — Dommage causé à
la marchandise
1. Le transporteur est
responsable du dommage
survenu en cas de destruction,
perte ou avarie de la
marchandise par cela seul que
le fait qui a causé le dommage
s’est produit pendant le
Page: 29
sustained took place during the
carriage by air.
2. However, the carrier is not
liable if and to the extent it
proves that the destruction, or
loss of, or damage to, the cargo
resulted from one or more of
the following:
. . .
Article 19 — Delay
The carrier is liable for damage
occasioned by delay in the
carriage by air of passengers,
baggage or cargo. Nevertheless,
the carrier shall not be liable for
damage occasioned by delay if
it proves that it and its servants
and agents took all measures
that could reasonably be
required to avoid the damage or
that it was impossible for it or
them to take such measures.
. . .
Article 21 — Compensation in
Case of Death or Injury of
Passengers
1. For damages arising under
paragraph 1 of Article 17 not
exceeding 100 000 Special
Drawing Rights for each
passenger, the carrier shall not
be able to exclude or limit its
liability.
2. The carrier shall not be liable
for damages arising under
transport aérien.
2. Toutefois, le transporteur
n’est pas responsable s’il
établit, et dans la mesure où il
établit, que la destruction, la
perte ou l’avarie de la
marchandise résulte de l’un ou
de plusieurs des faits suivants :
[…]
Article 19 — Retard
Le transporteur est responsable
du dommage résultant d’un
retard dans le transport aérien
de passagers, de bagages ou de
marchandises. Cependant, le
transporteur n’est pas
responsable du dommage causé
par un retard s’il prouve que lui,
ses préposés et mandataires ont
pris toutes les mesures qui
pouvaient raisonnablement
s’imposer pour éviter le
dommage, ou qu’il leur était
impossible de les prendre.
[…]
Article 21 — Indemnisation en
cas de mort ou de lésion subie
par le passager
1. Pour les dommages visés au
paragraphe 1 de l’article 17 et
ne dépassant pas 100 000 droits
de tirage spéciaux par passager,
le transporteur ne peut exclure
ou limiter sa responsabilité.
2. Le transporteur n’est pas
responsable des dommages
visés au paragraphe 1 de
l’article 17 dans la mesure où
Page: 30
paragraph 1 of Article 17 to the
extent that they exceed for each
passenger 100 000 Special
Drawing Rights if the carrier
proves that:
(a) such damage was not due to
the negligence or other
wrongful act or omission of the
carrier or its servants or agents;
or
(b) such damage was solely due
to the negligence or other
wrongful act or omission of a
third party.
. . .
Article 29 — Basis of Claims
In the carriage of passengers,
baggage and cargo, any action
for damages, however founded,
whether under this Convention
or in contract or in tort or
otherwise, can only be brought
subject to the conditions and
such limits of liability as are set
out in this Convention without
prejudice to the question as to
who are the persons who have
the right to bring suit and what
are their respective rights. In
any such action, punitive,
exemplary or any other noncompensatory
damages shall
not be recoverable.
ils dépassent 100 000 droits de
tirage spéciaux par passager,
s’il prouve :
a) que le dommage n’est pas dû
à la négligence ou à un autre
acte ou omission préjudiciable
du transporteur, de ses préposés
ou de ses mandataires, ou
b) que ces dommages résultent
uniquement de la négligence ou
d’un autre acte ou omission
préjudiciable d’un tiers.
[…]
Article 29 — Principe des
recours
Dans le transport de passagers,
de bagages et de marchandises,
toute action en dommagesintérêts,
à quelque titre que ce
soit, en vertu de la présente
convention, en raison d’un
contrat ou d’un acte illicite ou
pour toute autre cause, ne peut
être exercée que dans les
conditions et limites de
responsabilité prévues par la
présente convention, sans
préjudice de la détermination
des personnes qui ont le droit
d’agir et de leurs droits
respectifs. Dans toute action de
ce genre, on ne pourra pas
obtenir de dommages-intérêts
punitifs ou exemplaires ni de
dommages à un titre autre que
la réparation.
Page: 31
[52] There is no dispute that the flights in issue in this case meet the definition of “international
carriage” set out in the Montreal Convention, since they were flights between Canada and the
United States and vice versa. There is also no dispute that the damages sought by Mr. and
Ms. Thibodeau cannot be related to the categories of compensable damages set out at Articles 17 to
19 of the Montreal Convention.
[53] Air Canada submits that the Montreal Convention, like the Warsaw Convention, provides
for a complete international liability regime that totally displaces the signatory countries’ domestic
law when an event giving rise to liability occurs during international carriage. Therefore, it is
submitted that the Montreal Convention applies immediately when a situation potentially giving rise
to liability for an air carrier occurs during international carriage, regardless of whether the cause of
action is set out in the Convention or not. If a cause of action related to an incident or event which
occurs during international carriage is not set out in the Convention, it simply cannot give rise to
compensation by damages.
[54] Air Canada cites Article 29 of the Montreal Convention which, in its opinion, clearly sets
out the limited, exclusive liability framework for all air carriers for events which occur during
international carriage. Air Canada also submits that if there were any doubt as to the scope of
Article 24 of the Warsaw Convention,6 Article 29 of the Montreal Convention, which provides that
6 Article 24 of the Warsaw Convention. This provision originally read as follows:
In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be
brought subject to the conditions and limits set out in this Convention.
In the cases covered by Article 17, the provisions of the preceding paragraph also apply, without
prejudice to the questions as to who are persons who have the right to bring suit and what are their
respective rights.
Page: 32
“any action for damages, however founded, whether under this Convention or in contract or in tort
or otherwise” [emphasis added], has clarified the scope of the convention and excludes any claim in
damages, whatever the cause of the damage.
[55] Air Canada submits that this interpretation, upheld by Canadian and international case law,
is the only one consistent with the purpose of the Convention, that is the protection of both carriers
and passengers and to strike a balance, a compromise, between rights liabilities.
[56] Air Canada submits that the Court must adopt an interpretation of subsection 77(4) of the
OLA that harmonizes with the Convention and that it is not appropriate and just to award damages
when breaches of the OLA occur during international carriage. In support of this argument, Air
Canada is relying on the principles of interpretation that there is a presumption of conformity with
superior rules and with international law. Parliament is deemed, unless it clearly expresses itself
otherwise, to have intended to comply with the treaty obligations of the Crown and Air Canada
submits that nothing in the OLA indicates that Parliament intended to avoid its international
obligations. It submits that, to the contrary, subsection 82(1) of the OLA, which lists the provisions
of the OLA that prevail over incompatible provisions in any other Act, does not include
subsection 77(4) of the OLA. This means that Parliament did not intend to give overriding status to
the Court’s remedial power under the OLA.
[57] Air Canada submits that there is an analogy between the case at bar and Béliveau St-Jacques
v Fédération des employées et employés de services publics Inc., [1996] 2 SCR 345 (available on
Page: 33
CanLII), in which the Supreme Court recognized the exclusive nature of the Quebec employment
injury compensation system, which excludes claims made under the Quebec Charter of human
rights and freedoms since the legislative intent was to set up a complete and exclusive system. Air
Canada submits that this is also the case for the compensation regime set out in the Montreal
Convention.
[58] The Commissioner and the applicants take issue with Air Canada’s argument, but it is the
Commissioner who, for the most part, made the relevant argument. The Commissioner submits that
the Montreal Convention in no way limits the Court’s remedial power under subsection 77(4) of the
OLA.
[59] He submits, first, that there is no conflict between the Montreal Convention and the OLA,
because their respective ambits are completely different. He submits that the Montreal Convention
applies to international carriage by air and sets out rules of liability for specific situations bearing no
relation to the OLA and that the claim and compensation mechanism “in case of death or bodily
injury” resulting from an “accident” is simply not relevant with regard to the application of the
OLA, which concerns the respect of Canada’s official languages. The Commissioner submits that
the Convention aims to establish uniform rules governing compensation: the same rules must apply
in all signatory countries, for similar situations. He argues that the word “otherwise” found at
Article 29 of the Montreal Convention must mean any other proceeding of the same nature. He
submits that Air Canada is the only air carrier in the world that is subject to the remedy provided by
the OLA and that it would be illogical to conclude that the signatory countries and Canada in
Page: 34
particular wanted to implicitly [TRANSLATION] “achieve uniformity” of the official language rules
that apply only to Air Canada.
[60] In the alternative, the Commissioner submits that if there is a conflict between the Montreal
Convention and the OLA, the latter must prevail. His argument is based on the OLA’s
quasi-constitutional status and on subsection 82(1) of this statute. Contrary to Air Canada, the
Commissioner submits that there was no need for subsection 82(1) of the OLA to specify that the
remedy provided at Part X of the OLA must prevail; this flows implicitly from the incidental nature
of the remedy. The Commissioner submits that the OLA contains two categories of provisions: the
first being substantive provisions that impose duties and the second, provisions setting out
procedural avenues available in the event of a breach. Parliament chose to give precedence to
certain provisions imposing duties, and the remedy set out at subsection 77(1) is purely incidental in
nature. The Commissioner submits that it would be absurd to assume that the Parliament legislator
wanted to impose the primacy of the language rights set out at Part IV of the OLA without ensuring
that those rights could be enforced by effective remedies. That would have the effect of rendering
the primacy of Part IV of the OLA, set out at subsection 82(1) of that statute, illusory.
[61] For my part, I consider, on the following grounds, that there is a conflict between
subsection 77(4) of the OLA and the Montreal Convention.
[62] I have already discussed the interpretation of subsection 77(4) of the OLA in the section
above. It commands a broad and liberal interpretation, and damages are undeniably among the
remedies available under subsection 77(4) of the OLA.
Page: 35
[63] Let us now examine the ambit of the Montreal Convention.
[64] The Montreal Convention was incorporated into the domestic law of Canada through the
Carriage by Air Act, and, since it is an international agreement, it should be interpreted, in the light
of the case law developed in the signatory countries, in accordance with the principles of
interpretation applicable to international agreements.
[65] In their treatise on the liability of international air carriers and the Montreal Convention,7
Stephen Dempsey and Michael Milde summarize the principles of interpretation of the Montreal
Convention as follows, at pages 45 and 46:
The 1999 Montreal Convention [M99] is an international multilateral
treaty and its construction and interpretation must be governed, inter
alia, by the international law of treaties; the law of treaties has been
codified in the 1968 UN Vienna Convention on the Law of treaties.
Since the fundamental provisions of the Vienna Convention codify
the customary international of treaties, the Convention is, in
principle, applicable, even for States that have not ratified it.
The Vienna Convention on the Law of Treaties provides guidance in
treaty interpretation, and effectively reaffirms much of the
interpretative jurisprudence given Warsaw even prior to the Vienna
Convention: . . .
The provisions of the Vienna convention on the Law of treaties
reflect the common national principles of the interpretation of the
legal norms - grammatical interpretation (ordinary meaning of the
words), logical interpretation (in the context of the legal source) and
teleological interpretation (in the light of the aim and purpose of the
legal source). Article 32 of the Vienna Convention recognizes also
the historic interpretation (preparatory work) as a supplementary
means of interpretation.
7 Stephen Dempsey and Michael Milde, International Air Carrier Liability, The Montreal Convention (Centre for
Research of Air & Space Law McGill University, 2005)
Page: 36
[66] Professor Sullivan8 made the following observations on the interpretation of international
agreements incorporated into domestic law:
When an international convention is incorporated, in whole or in
part, it acquires the status and force of domestic legislation without
being changed in any way. Although it becomes part of domestic
legislation, it retains its identity as an instrument of international law
and thus carries its international law baggage with it. In interpreting
an incorporated convention, the court appropriately applies
international law principles of interpretation, looks to international
law materials and relies on interpretations of the incorporated law by
international courts as well as courts in other jurisdictions.
[67] At first glance, I am tempted to accept the Commissioner’s argument that the Montreal
Convention cannot apply in this case because it concerns situations that are totally foreign to the
ambit of the OLA and is in no way concerned with breaches of that statute. The characteristic of a
convention whose purpose is to achieve uniformity of liability and compensation rules is that it
applies in circumstances that are likely, if they were to occur in the various signatory countries, to
be governed by different legal rules and therefore lead to different results depending on where the
event giving rise to liability takes place. The purpose of such a convention is to avoid
inconsistencies and contradictions. Therefore, the ambit of the international convention must, in my
opinion, be defined by what is common to all of the signatory countries; the aim is to avoid, with
regard to certain events and situations, different legal consequences from one signatory country to
the next.
8 Ruth Sullivan, Sullivan on the Construction of Statutes, fifth edition (Lexis Nexis, 2008), p. 550.
Page: 37
[68] In Sidhu v British Airways, [1997] 1 All ER 193 [Sidhu], which is the authority on the
interpretation of the Warsaw Convention, the House of Lords commented as follows on the purpose
of the Convention:
I believe that the answer to the question raised in the present case is
to be found in the objects and structure of the Convention. The
language used and the subject matter with which it deals demonstrate
that what was sought to be achieved was a uniform international
code, which could be applied by the courts of all the high contracting
parties without reference to the rules of their own domestic law. The
Convention does not purport to deal with all matters relating to
contracts of international carriage by air. But in those areas with
which it deals—and the liability of the carrier is one of them—the
code is intended to be uniform and to be exclusive also of any resort
to the rules of domestic law. (p. 212)
. . .
. . . The conclusion must be therefore that any remedy is excluded by
the Convention, as the set of uniform rules does not provide for it.
The domestic courts are not free to provide a remedy according to
their own law, because to do this would be to undermine the
Convention. It would lead to the setting alongside the Convention of
an entirely different set of rules which would distort the operation of
the whole scheme. (p. 213)
[69] The purpose of the Convention was also discussed by the Supreme Court of the United
States in El Al Israel Airlines, Ltd., Petitioner v Tsui Yuan Tseng (1999), 525 US 155, 119 S Ct 662
[Tseng], another leading authority on the interpretation of the Warsaw Convention and the Montreal
Convention: The Court commented as follows:
. . . The Cardinal purpose of the Warsaw Convention we have
observed is to “achieve [**672] uniformity of rules governing claims
arising from international air transportation . . . (p. 13)
[70] It is clear that the Montreal Convention does not impose linguistic duties . Air Canada is the
only carrier subject to the OLA, and the matters that this legislation addreses are unrelated, as such,
Page: 38
to international carriage and also do not concern the other countries that are signatories to the
Convention. Therefore, I am tempted to conclude that, given the scope of Article 29, this provision
does not exclude remedies based on causes of action that are foreign to the purpose and ambit of the
Convention.
[71] However, I cannot disregard the case law pertaining to the scope of the Warsaw Convention
and the Montreal Convention.
[72] In Sidhu, above, the House of Lords adopted a very broad interpretation of Article 24 of the
Warsaw Convention by excluding any possibility of compensation for grounds not set out in the
Convention. In that case, passengers had instituted an action against British Airways and were
seeking damages for bodily injuries and pain and suffering resulting from their having been taken
hostage after the airplane on which they were travelling landed in Kuwait to refuel when the Kuwait
War had just begun. The applicants were claiming that British Airways had been negligent. In its
discussion of the scope of Articles 17 and 24 of the Convention, the House of Lords made the
following comments, at pages 296 and 297:
The reference in the opening words of article 24(2) to “the cases
covered by article 17” does, of course, invite the question whether
article 17 was intended to cover only those cases for which the
carrier is liable in damages under that article. The answer to that
question may indeed be said to lie at the heart of this case. In my
opinion the answer to it is to be found not by an exact analysis of the
particular words used but by a consideration of the whole purpose of
the article. In its context the purpose seems to me to be to prescribe
the circumstances—that is to say, the only circumstances—in which
a carrier will be liable in damages to the passenger for claims arising
out of his international carriage by air.
The phrase “the cases covered by article 17” extends therefore to all
claims made by the passenger against the carrier arising out of
Page: 39
international carriage by air, other than claims for damage to his
registered baggage which must be dealt with under article 18 and
claims for delay which must be dealt with under article 19. The
words “however founded” which appear in article 24(1) and are
applied to passenger’s claims by article 24(2) support this approach.
The intention seems to be to provide a secure regime, within which
the restriction on the carrier’s freedom of contract is to operate.
Benefits are given to the passenger in return, but only in clearly
defined circumstances to which the limits of liability set out by the
Convention are to apply. To permit exceptions, whereby a passenger
could sue outwith the Convention for losses sustained in the course
of international carriage by air, would distort the whole system, even
in cases for which the Convention did not create any liability on the
part of the carrier. Thus the purpose is to ensure that, in all questions
relating to the carrier’s liability, it is the provisions of the Convention
which apply and that the passenger does not have access to any other
remedies, whether under the common law or otherwise, which may
be available within the particular country where he chooses to raise
his action. The carrier does not need to make provision for the risk of
being subjected to such remedies, because the whole matter is
regulated by the Convention.
[73] The Supreme Court of the United States followed that case law in deciding the scope of the
Convention in Tseng, above. In that case, the Court ruled that a passenger could not institute an
action in damages following a search to which he had been subjected in an airport because that
claim did not meet the parameters of the Warsaw Convention. The US Second Circuit Court of
Appeal, in King v American Airlines, 2002 US App Lexis 4611 (USCA 2C) (available on QL), for
its part, interpreted the Convention as excluding all possibility of a remedy for discriminatory
actions by the air carrier’s employees when they occurred during international carriage. In Gordon
T. Carey v United Airlines, 2001 US App. Lexis 14834 (available on QL), the US Court of Appeals
for the Ninth Circuit, ruled to the same effect regarding an action in damages following an incident
between a flight attendant and a passenger.
Page: 40
[74] The Canadian case law has been developed mainly in the context of situations in which
events giving rise to liability could have been considered under the Warsaw Convention or the
Montreal Convention, but in which the types of damage claimed, among others pain and suffering
or psychological damage, were not compensable under the convention. By and large, the case law
holds that is exclusive the compensation scheme set out under the Warsaw Convention or the
scheme provided for by the Montreal Convention; it therefore excludes the exercise of all other
remedies (Simard c Air Canada, 2007 QCCS 4452, [2007] J.Q. No. 11145; Chau v Delta Air Lines
Inc., 67 O.R. (3d) 108 (available on CanLII); Plourde v Service aérien FBO inc. (Skyservice), 2007
QCCA 739 (available on CanLII); Walton v Mytravel Canada Holdings Inc., 2006 SKQB 231, 151
ACWS (3d) 561; Connaught Laboratories Ltd. v British Airways, [2002] O.J. No. 3421, 116
ACWS (3d) 322).
[75] The liberal interpretation given to the Warsaw and Montreal Conventions leads me to
acknowledge the very broad ambit of the Montreal Convention, which comes into play once an
incident or a situation occurs during international carriage and sets out, in a limited way, the causes
of action which may give rise to compensation and the compensable types of damage.
[76] Since I feel bound by the case law, despite my reservations, I conclude therefore that there is
a conflict between the Montreal Convention and the Court’s remedial power set out at
subsection 77(4) of the OLA.
[77] Moreover, it does not seem possible to me to reconcile the two instruments. If I were to
conclude that subsection 77(4) of the OLA excludes the award of damages when the violation
Page: 41
occurs during an international flight, this would weaken the OLA considerably. I am also of the
opinion that in interpreting the Montreal Convention as allowing compensation on the basis of a
cause of action which is not contemplated by the Convention, I would depart from the Canadian and
international case law.
[78] Having concluded that there is a conflict between the two instruments, I must now
determine which, subsection 77(4) of the OLA or the Montreal Convention, must prevail. In his
doctrinal work, Professor Pierre-André Côté9 comments as follows:
[TRANSLATION]
. . .
1325. Because the legislature is aware of possible inconsistencies, it
sometimes adopts explicit rules establishing an order of priority
between different enactments.
. . .
1334. If the legislator has not expressly enacted a formal hierarchy,
the usual rules of interpretation are employed to determine which
laws have implicitly been given precedence.
. . .
[79] In this case, two instruments of higher rank and two principles of interpretation are at issue:
the presumption of conformity with international law and the primacy of quasi-constitutional
enactments.
[80] Professor Sullivan10 describes these two principles as follows:
9 Pierre-André Côté, Interprétation des lois, 4th ed. (Les éditions Thémis, 2009).
10 Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed., (Lexis Nexis, 2008), p. 550.
Page: 42
Governing principle. Although international law is not binding on
Canadian legislatures, it is presumed that legislation enacted both
federally and provincially is meant to comply with international law
generally and with Canada’s international law obligations in
particular.
. . .
As these authorities indicate, there are two aspects to the
presumption of compliance with international law. First, the
legislature is presumed to comply with the obligations owed by
Canada as a signatory of international instruments and more
generally as a member of the international community, In choosing
among possible interpretations, therefore, courts avoid an
interpretation that would put Canada in breach of its international
obligations, Second, the legislature is presumed to respect the values
and principles enshrined in international law, both customary and
conventional. These constitute a part of the legal context in which
legislation is enacted and read. In so far as possible, therefore, an
interpretation that reflects these values and principles is preferred.
[p. 538]
Special status of human rights legislation. Since the Supreme Court
of Canada’s decision in Insurance Corporation of British Columbia
c. Heerspink, legislation enacted to protect human rights has been
recognized as having a quasi-constitutional status. This has several
implications.
(1) Human rights legislation is given a liberal and purposive
interpretation. Protected rights receive broad interpretation, while
exceptions and defenses are narrowly construed.
(2) In responding to general terms and concepts, the approach is
organic and flexible. The key provisions of the legislation are
adapted not only to changing social conditions but also to evolving
conceptions of human rights.
(3) In case on conflict or inconsistency with other types of
legislation, the human rights legislation prevails regardless of which
was enacted first. [p. 497]
[81] In this case, I am of the opinion that subsection 77(4) of the OLA must prevail over the
Montreal Convention, on two main grounds.
Page: 43
[82] First, I am of the view that, in specifying that the provisions of Part IV (subsection 82(1) of
the OLA) prevail, Parliament implicitly gave precedence to the remedy provisions by means of
which breaches of the duties set out in Part IV of this statute may be enforced. I am of the opinion
that there was no need for Parliament to expressly provide for the primacy of the remedy set out at
subsection 77(1) because this flows from its incidental nature in respect of the rights it aims to
enforce. To rule otherwise would render meaningless the primacy given to the provisions listed at
subsection 82(1) of the OLA.
[83] Second, I am of the opinion that in giving precedence to subsection 77(4) of the OLA over
the Montreal Convention, the Court is giving effect to the quasi-constitutional status of the OLA
without violating Canada’s treaty obligations. Giving precedence to the OLA results in a
displacement of the Montreal Convention but, in my opinion, this does not compromise Canada’s
international obligations or undermine their integrity. The OLA does not apply to any other carrier
subject to the Montreal Convention. Furthermore, if Air Canada is subject to the OLA, that is not
due to its activities as an international carrier, but its status as an "old" federal institution. Air
Canada’s duties as to the official languages do not interest or concern any other signatory country of
the convention. A departure from the Montreal Convention to ensure the efficacy of proceedings
aimed at enforcing Air Canada’s duties as to the official languages has no effect on the other
signatory countries of the Convention, and does not weaken the Convention or imperil the integrity
of the uniform liability regime it enshrines. In this case, this is a very minor circumvention of the
Montreal Convention that has no impact on the liability of the other carriers subject to the
Convention or on Canada’s treaty obligations; thus, the remedy and penalties set out in the OLA
receive their full effect.
Page: 44
(b) Amount of damages
[84] The applicants are seeking $5,000 each for each violation of their language rights. They are
thus seeking a total of $50,000.
[85] Air Canada submits that the applicants did not suffer any compensable damage and should
not be awarded damages.
[86] In Ward, above, the Supreme Court confirmed that damages could be granted as a remedy
under subsection 24(1) of the Charter and defined a test. The first step is to establish that a Charter
right has been breached. It was in this case. The applicant must then show that damages are an
appropriate and just remedy having regard to the following criteria, which can have a combined
effect: compensation for the loss, importance of the right at issue and deterrence. The state (Air
Canada in this case) may, for its part, attempt to rebut the appropriate and just nature of the damages
on various grounds, such as the availability of other remedies and good governance. If the judge
rules that damages are appropriate, he or she must then determine the amount. The damages must
correspond to the seriousness of the breach and the purposes of damages awarded under
subsection 24(1) of the Charter.
[87] In Montigny v Brossard (Succession), 2010 SCC 51 at para 34, [2010] 3 SCR 64
[de Montigny], the Supreme Court also held that moral prejudice could be compensated without
categorizing all its various aspects.
Page: 45
[88] I will therefore follow these principles in this case. First, I reject Air Canada’s position that
the applicants have suffered no prejudice. While I agree that the prejudice they suffered is not
comparable to that arising from a search for example, such as in Ward, yet, the applicants’ language
rights are clearly very important to them and the violation of their rights caused them a moral
prejudice, pain and suffering and loss of enjoyment of their vacation. It is also my opinion that
awarding damages in this case will serve the purpose of emphasizing the importance of the rights at
issue and will have a deterrent effect.
[89] There is always some arbitrariness when it comes to determining the appropriate and just
amount of damages to award. In Fédération Franco-Ténoise v Canada (Attorney General), 2006
NWTSC 20 at paras 909 to 919 [2006] NWTJ No. 32 [Fédération Franco-Ténoise], the Supreme
Court of the Northwest Territories reviewed the case law on damages awarded to compensate
breaches of constitutional rights and moral damages arising from breaches of constitutional rights.
The Court noted that the amounts ranged between $3,000 and $10,000 and that in some instances
the amounts were essentially symbolic.
[90] In this case, having regard to the three objectives, namely compensation for the harm
sustained, general recognition of the importance of the rights at issue and deterrence, I deem it
appropriate and just to order that $6,000 be paid to each of the applicants, namely $1,500 for each
breach.
(2) Is it appropriate and just to make institutional orders against Air Canada?
Page: 46
[91] The applicants submit that Air Canada repeatedly breached its linguistic duties over an
extended period and that, therefore, the Court should make institutional orders to force Air Canada
to comply with its duties. They ask that the Court order Air Canada to
• to take all the steps necessary to ensure that the public can communicate with Air Canada
and receive all services from it in French, in accordance with Part IV of the OLA, section 10
of the ACPPA and the Regulations;
And, without limiting the generality of the foregoing,
• ensure that it has an adequate bilingual capability and takes all the other steps necessary to
provide services to the public in French for in-flight services on routes on which there is
significant demand for services in French;
• take measures to actively offer service to the public, including making an active offer of
services in French by providing signs, notices and other information on services and
initiating communication with the public, in accordance with Part IV of the OLA, section 10
of the ACPPA and the Regulations;
• implement an adequate monitoring system and procedures designed to quickly identify,
document and quantify potential violations of language rights, which rights are set out in
Part IV of the OLA, at section 10 of the ACPPA and in the Regulations;
• ensure that language rights, as described in Part IV of the OLA, at section 10 of the ACPPA
and in the Regulations, prevail over any agreement signed by Air Canada and any collective
agreements that involve Air Canada.
Page: 47
[92] In order to prove their allegation of systemic breaches, the applicants cite section 79 of the
OLA, under which the Court may admit as evidence information relating to similar complainants, is
engaged.
79. In proceedings under this
Part relating to a complaint
against a federal institution, the
Court may admit as evidence
information relating to any
similar complaint under this
Act in respect of the same
federal institution.
79. Sont recevables en preuve
dans les recours les
renseignements portant sur des
plaintes de même nature
concernant une même
institution fédérale.
[93] This Court has ruled on the purpose of section 79 of the OLA on a few occasions and has
determined that the purpose of this provision is to allow applicants, or the Commissioner, to argue
that the OLA breaches giving rise to recourse may reveal a much larger problem and to allow the
Court to consider that larger problem in its assessment of what constitutes an appropriate and just
remedy. In Canada (Commissioner of Official Languages) v Air Canada, 77 ACWS (3d) 1166
(available on QL), Judge Dubé explained the purpose of section 79 of the OLA as follows:
17 This section is one of a kind and does not appear in other
similar legislation. Parliament’s intention is clearly to present the
courts with a full context. I therefore agree with the Commissioner’s
position that the remedy is not limited to certain types of ground
services listed in Paul Comeau’s two specific complaints but may
apply to all ground services provided by Air Canada at the Halifax
airport.
18 In my view, the purpose of section 79 is to enable the
Commissioner to prove to the Court that there is a systemic problem
and that it has existed for a number of years. Unless all similar
complaints are filed in evidence, the Court cannot assess the scope of
the problem and the circumstances of the application.
19 It is up to the judge presiding at the hearing on the merits of the
motion to assess the probative force of all these facts or all this
information in the context of more general considerations. . . .
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[94] These principles were reiterated by Justice Beaudry in Thibodeau v Air Canada, 2005 FC
1156, [2006] 2 FCR 70, [Thibodeau 1] and by Justice de Montigny in Lavigne v Canada Post
Corporation, 2009 FC 756 (available on CanLII).
[95] The Federal Court of Appeal also interpreted the purpose and scope of section 79 of the
OLA in Canada (Commissioner of Official Languages) v Air Canada, 88 ACWS (3d) 995, 240 NR
390. Judge Décary, writing on behalf of the Court, stated as follows:
13 The powers of the Commissioner of Official Languages are
unique in that the Act expressly allows him, under section 79, in the
context of a court proceeding in relation to a particular instance or
case, to file “information relating to any similar complaint”. The
proceeding does not cease to be an individual one, in that the
complaint in question is the one that is the subject matter of the
proceeding, but it was Parliament’s intention that the Court, which,
under subsection 77(4), may “grant such remedy as it considers
appropriate and just in the circumstances” (the same language that is
found in subsection 24(1) of the Canadian Charter of Rights and
Freedoms), should be able to have before it an overall view, and thus
an idea of the scope of the problem, if a problem exists.
. . .
16 The Act itself provides that a particular complaint may serve as
the gateway into a federal institution’s system as a whole. This was
Parliament’s intention, as a means of giving more teeth to an
enactment, the Official Languages Act, which serves as a special tool
for the recognition, affirmation and extension of the linguistic rights
recognized by the Canadian Charter of Rights and Freedoms.
[96] In support of their allegation that Air Canada’s breaches of its language duties are systemic,
the applicants have adduced various documents, including the Commissioner’s annual reports and,
under section 79 of the OLA, investigation reports of the Commissioner relating to similar
complaints, the complaints filed by two other individuals and statistics on complaints filed with the
Page: 49
Commissioner against Air Canada. I conclude that these documents may be admitted as evidence
under section 79 of the OLA.
[97] While it denies that the breaches of its linguistic duties are systemic, Air Canada submits
that the applicants lack standing to act in the public interest and allege systemic breaches and
request institutional orders. Air Canada submits that the applicants only have standing for the
incidents that directly concern them.
[98] I will deal with this issue first, before discussing the evidence adduced in support of the
claim that the breaches are systemic.
[99] In Finlay v Canada (Minister of Finance), [1986] 2 SCR 607 (available on CanLII), and
Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992]
1 SCR 236 (available on CanLII), the Supreme Court confirmed that a court called to exercise its
discretion to recognize an applicant’s public interest standing has to consider the following three
factors:
1- The applicant must raise a serious issue; in other words, there must be a real issue;
2- The applicant must have a genuine interest in the issue; and
3- There must be no other more reasonable and effective way to bring the issue before the courts.
[100] Air Canada submits that the Court should not grant the applicants standing to argue systemic
breaches since it would be more effective and reasonable that such remedy be exercised by the
Commissioner. Air Canada further submits that the Court should consider judicial economy and
Page: 50
emphasizes the Commissioner’s memorandum, in which he points out that he is currently carrying
out an audit for 2010–2011. Air Canada infers from this that it is not excluded that the
Commissioner will institute proceedings according to the outcome of his audit and submits that, in
that case, there would be multiple proceedings.
[101] For his part, the Commissioner is of the view that the applicants have as much of an interest
as he to file this application and to allege systemic breaches of its duties by Air Canada. He even
argues that, in the current context, it is better that it be the applicants who act in the public interest.
The Commissioner stated that, in terms of the options available to him, to enforce the OLA, the
judicial route, re while important, is only used as a last resort. In addition, he is currently auditing
Air Canada and he is of the opinion that it is more appropriate that the applicants act both on their
own behalf and in the public interest. The Commissioner insists that, in any event, he is an
intervener in this case; if he himself had instituted the proceedings, he would have filed evidence of
the same nature as that filed by the applicants.
[102] In Thibodeau 1, Justice Beaudry granted Mr. Thibodeau, who, in that case, had also
instituted proceedings against Air Canada, standing to act on behalf of the public interest. The facts
were similar to the ones in the case at bar: Mr. Thibodeau had filed an application against Air
Canada in which he alleged that Air Canada and one of its subsidiaries, Air Ontario, had failed to
comply with their duties under the OLA. As in the present case, Mr. Thibodeau alleged that Air
Canada’s breaches were systemic and asked the Court to make similar orders as those sought in the
present case. As in this instance, Air Canada argued that Mr. Thibodeau lacked standing to act on
behalf of the public and that the Commissioner was in a better position in that respect.
Page: 51
[103] Following the Finlay criteria, Justice Beaudry exercised his discretion and granted
Mr. Thibodeau standing on behalf of the public interest:
[79] In this case there is no doubt that the applicant raises a
serious question and that he has a genuine interest in the subjectmatter
of the application. However, is there some other, more
reasonable and effective manner in which the issue may be brought
before the courts? Perhaps the Commissioner could have exercised
the remedy herself: English version: “78(1)(a). . . may apply to the
Court for a remedy” following the conclusion of her investigation.
But, based on my analysis of paragraph 78(1)(a) and subsection
78(2), I think both the complainant (the applicant in this proceeding)
and the Commissioner may exercise the remedy under paragraph
78(1)(a). In the present circumstances, using my discretion, I grant
the applicant standing on behalf of the public interest.
[104] I agree with Justice Beaudry: his remarks are entirely relevant in this case. There is no doubt
that the applicants are raising serious issues and that they have an interest in the subject-matter of
their application. Moreover, subsection 77(1) of the OLA clearly provides that the remedy is
available to any person who has made a complaint to the Commissioner, and section 79, according
to which the Court may admit in evidence information relating to any similar complaint under the
OLA, makes no distinction as to the identity of the applicant. Parliament did not restrict the
admissibility in evidence of such information only to cases where when the remedy is applied for by
the Commissioner. It is inconceivable that Parliament would grant applicants other than the
Commissioner the possibility to file information on similar complaints and then deprive the same
applicants of the standing required to present it before the Court. In enacting section 79, Parliament
wanted to allow both the Commissioner and applicants who meet the conditions of subsection 77(1)
to raise systemic problems and to adduce in evidence information in support of such allegations.
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[105] In this case, the Commissioner stated that if he had instituted the present proceeding, he
would have filed the same evidence as Mr. Thibodeau; in fact, much of the evidence was sent to
Mr. Thibodeau for the purposes of this proceeding under paragraph 73(b) of the OLA.
[106] Lastly, I conclude that Air Canada’s position that there would potentially be multiple
proceedings should the Commissioner decide to turn to the Court according to the outcome of his
audit is speculation. In the exercise of my discretion, I therefore find that the applicants have public
interest standing.
[107] I will now move on to the allegations that Air Canada’s breaches of its language duties are
systemic.
[108] In support of their allegation that there is a systemic problem, the applicants adduced several
items of evidence which I shall review.
(i) Complaint filed against Air Canada by Mr. Thibodeau in 2002
[109] The applicants have filed a similar complaint as that filed by Mr. Thibodeau against Air
Canada in 2002 concerning the lack of service in French on a flight operated by Air Ontario, then an
Air Canada subsidiary, and adduced a number of documents in the course of that proceeding, the
outcome of which was Thibodeau 1, Thibodeau v Air Canada, 2005 FC 1621, 284 FTR 79, and Air
Canada v Thibodeau, 2007 FCA 115, 165 ACWS (3d) 542. The applicants submit that, even though
Page: 53
they were successful, Air Canada has again violated their language rights, nine years later. In their
view, this is an indication that the problems that existed in 2002 have still not been resolved.
(ii) The complaints filed by Member of Parliament Yvon Godin
[110] The applicants obtained federal Member of Parliament Yvon Godin’s written authorization
to adduce both the complaints he filed with the Commissioner against Air Canada and the
Commissioner’s report concerning these complaints. The complaints and the reports contain the
following information:
Complaint Commissioner’s Report
Complaint filed on March 20,
2001: Written safety instruction
on the plane not translated into
French.
Report dated March 30, 2004:
Complaint valid; undertaking by
Air Canada to change signage in
its Boeings.
Complaint filed on May 9,
2001: Lack of service in French
on an Air Ontario flight between
Ottawa and Montréal on May 4,
2001, and passenger baggage
announcement made in English
only at the Montréal airport.
Investigation interrupted
because of Air Ontario going
out of business.
Investigation of passenger
announcement made at airport
inconclusive, but Air Canada
undertook to implement
corrective action.
Problem reported to
Commissioner and Air Canada
on March 4, 2002: Air Canada
flight attendants complained
because they were to give safety
instructions in English only and
because the brochure given to
flight attendants was in English
only.
Complaint dated February 6, Report dated April 21, 2008:
Page: 54
2008: Lack of service in French
at Air Canada’s gate at the
Ottawa airport for an Ottawa–
Montréal flight.
Complaint valid.
Complaint dated March 24,
2010: Lack of service in French
on a Montréal–Bathurst (N.B.)
flight on March 11, 2010.
No Commissioner’s report.
Complaint dated April 1, 2010:
Lack of Service in French on
Bathurst–Montréal flight on
March 29, 2010.
No Commissioner’s report.
(iii) Incidents involving Jean Léger
[111] Mr. Léger was president of the Fédération acadienne de la Nouvelle-Écosse. The applicant
have adduced documents and two videos describing an incident that occurred on March 26, 2007,
when Mr. Léger was about to board an Air Canada aircraft at the Halifax airport and noted that the
agents at the gate were unable to provide him services in French. Mr. Léger insisted on being served
in French, and, as he was filming the scene, the Air Canada agents denied him boarding and called
security. Mr. Léger was able to take another flight a little later. The applicants have adduced a letter
of apology sent to Mr. Léger by Air Canada, in which it admitted that service should have been
available in French but argued that its attendants had been justified to deny Mr. Léger boarding
because of his attitude. Following these incidents, Mr. Léger filed complaints with the
Commissioner. In a letter dated July 30, 2007, the Commissioner set out Air Canada’s undertakings
to improve its capacity to provide services in French at the Halifax airport.
Page: 55
(iv) The Commissioner’s annual reports
[112] The applicants have adduced the Commissioner’s annual reports for 1999-2000 to
2008-2009. These reports present the Commissioner’s findings on compliance with the OLA by
various federal institutions and Air Canada. They also contain statistical data on the complaints
filed. The reports reveal that the Commissioner severely judged Air Canada’s official language
performance.
(v) Data on complaints filed with the Commissioner against Air Canada
[113] The applicants adduced statistical data sent to them by the Commissioner. Under section 60
of the OLA, every investigation by the Commissioner under the OLA is conducted on a confidential
basis. However, under section 73 of the OLA, the Commissioner may disclose information he has
gathered for his investigations in the course of proceedings instituted under Part X of the OLA,
should he see fit to do so. In this case, the Commissioner disclosed to the applicants statistical data
indicating the number of eligible complaints received since 1999 and the status of these complaints.
He also sent the applicants a compilation of summaries of each of these complaints. The following
table lists the number of language-of-service-related complaints received by the Commissioner per
year and breaks them down according to their status.
Year # of complaints Complaints
substantiated
Complaints resolved Active complaints
2009–2010 60 0 9 51
2008–2009 67 0 16 51
Page: 56
2007–2008 76 40 23 13
2006–2007 57 39 18 3
2005–2006 67 47 20
2004–2005 81 71 10
2003–2004 52 38 14
2002–2003 115 86 29
2001–2002 135 106 29
2002–2001 128 99 29
1999–2000 144 79 65
[114] The applicants and the Commissioner emphasized that several complaint summaries
describe arrogance on the part of Air Canada employees and attendants or third parties offering
services on Air Canada’s behalf.
(vi) Affidavit of Manon Stuart
[115] The applicants have adduced the affidavit of Manon Stuart, Jazz’s Manager, Corporate
Communications, in which she admitted that Jazz is not always able to comply with the OLA. More
specifically, the applicants drew the Court’s attention to the following excerpts from this affidavit:
[TRANSLATION]
. . .
36. With all the efforts invested since 2001, Jazz now has enough
staff to provide service in French for all flights on which there is
significant demand and which start or finish in Ontario, Quebec and
the Maritime provinces. In total, there about 75 routes on which there
is significant demand starting or finishing at a destination in Ontario,
Page: 57
Quebec and the Maritime provinces, including automatically and
survey-designated routes.
37. All routes automatically considered to be routes on which there is
significant demand take off or land in these provinces.
38. However, the situation is more delicate when it comes to flights
operated in the provinces to the west of Ontario, where certain routes
are considered to have significant demand according to survey
results, even though there are no automatically designated routes on
which there is significant demand in these provinces.
39. Indeed, Jazz has fewer bilingual flight attendants at its Vancouver
and Calgary bases to operate these routes. Depending on the time of
the flight, staff assignments and last-minute unexpected events, Jazz
may occasionally not be able to assign a bilingual employee to a
flight on which there is considered to be significant demand, namely,
a flight operated on one of the following eight routes:
Vancouver–Victoria
Calgary–Castlegar
Calgary–Winnipeg
Calgary–Victoria
Edmonton–Fort McMurray
Edmonton–Winnipeg
Edmonton–Yellowknife
Winnipeg–Regina
. . .
[116] The applicants have also adduced the written examination on affidavit of Ms. Stuart and the
written answers she gave, in which she admitted that before the applicants filed their complaint, the
flight assignment system did not make it possible to identify the routes designated by the surveys as
having significant demand for services in French. She also admitted that the flight attendants
assigned to the flights that resulted in the applicants’ complaints continued to be assigned to flights
with a single flight attendant and on which there was significant demand for services in French. The
following excerpts from the written examination of Ms. Stuart and her answers are of particular
relevance:
Page: 58
[TRANSLATION]
[Answer]
. . .
7. The flights in question are considered to have significant
demand for service in French as a result of the surveys carried out in
2007 under the supervision of the Treasury Board Secretariat and are
not automatically considered as having significant demand. During
our investigation, we have discovered that the routes on which there
is significant demand on the basis of the 2007 surveys had not been
programmed into our flight assignment system. Jazz is currently
implementing the necessary measures so that these routes are
identified in the flight assignment system.
8. Jazz is currently implementing measures to ensure that all
flights on which there is significant demand be properly identified in
the flight assignment system and consequently staffed with bilingual
personnel. Having said that, it remains possible that, occasionally,
there may not be a bilingual flight attendant available to operate a
flight on which there is significant demand. For example, for
irregular operations, it may be impossible for a flight attendant to
report for the flight assigned to him or her. Sometimes, a bilingual
flight attendant initially assigned to a flight on which there is
significant demand may not report to work because he or she is sick
for example, and it is not always possible to assign another bilingual
flight attendant at the last minute.
. . .
[117] A number of the questions asked by the applicants in this written examination of Ms. Stuart
were intended to determine the number of times no bilingual flight attendant was assigned to flights
on which there is significant demand for services in French. On every occasion, Ms. Stuart indicated
that such information could not be obtained from Jazz’s flight assignment system. The following is
an example on an exchange on that topic.
Page: 59
[TRANSLATION]
[Question]
. . .
1. In your affidavit dated June 14, 2010, you mention at
paragraph 10 that Jazz is currently operating about 840 flights a day
to several destinations.
(a) Of these 840 daily flights currently operated by Jazz, how
many are considered to be flights on which there is significant
demand for service in French?
(b) Of these daily flights on which there is significant demand,
how many are operated with a single flight attendant?
(c) Of these daily flights on which there is significant demand
and which are serviced by a single flight attendant, how many are
operated by a single flight attendant, how many are operated with a
flight attendant who does not have at least Level 2C proficiency in
French, the level described at paragraph 23 of your affidavit?
. . .
[Answer]
(1a) As of the date of this examination, 498 of the daily flights
operated by Jazz are considered to be flights on which there is
significant demand.
(1b) As of the date of this examination, of the 498 flights
considered to be flights on which there is significant demand, 437 are
operated using aircraft with a capacity for 37 or 50 passengers, for
which there is a single flight attendant.
(1c) We do not have these statistics, and the flight assignment
system is not able to determine it automatically. To do so, one would
have to go back to each flight, for every day, and the file of every
flight attendant in order to determine the level of French of the
attendant on board when the flight in question was operated. In fact,
because of the French training program, our flight attendants’
language skills are constantly improving. This question is therefore
unreasonable.
Page: 60
[118] For its part, Air Canada admits that it is not always able to provide all services in French, as
required by the OLA, but it submits that breaches are occasional and do not reveal a systemic
problem.
[119] Air Canada emphasizes that things are evolving within the organization; it has made
commitments and it makes considerable efforts to hire bilingual staff and to develop the language
skills of its employees and those of Jazz, that service in French has improved over the years and that
its complaints track record has improved substantially.
[120] Air Canada’s position is based on the affidavit of Ms. Stuart of Jazz and the affidavit of
Chantal Dugas, Air Canada’s manager of linguistic affairs.
[121] In her affidavit, Ms. Dugas details some of the reorganizations that Air Canada has
undergone since 2001. Air Canada further emphasizes the socio-economic context, which has made
it fairly difficult for the company over the last decade. Among other things, it referred to the
economic crisis, the events of September 11, 2001, the collapse of the banks, SARS and the
volcanic eruption in Iceland that disrupted air traffic. It submits that, even though the situation has
often been difficult, Air Canada has always taken, and is still taking, significant measures to provide
service in both official languages. Air Canada emphasized its official languages policy, signed by its
president and CEO, which focuses on the provision of services in both official languages on board
all Air Canada flights.
Page: 61
[122] Ms. Dugas pointed out that Air Canada does not receive all the complaints filed with the
Commissioner, which remain anonymous unless they are also filed with Air Canada directly. She
confirmed that, upon receipt of Mr. and Ms. Thibodeau’s complaints, Air Canada asked Jazz to
review its flight assignment system to ensure that the system identifies flights on which there is
significant demand for services in French so determined as a result of the surveys and that it
automatically requests the assignment of bilingual flight attendants. She confirmed that Jazz was
currently making the necessary adjustments.
[123] She also confirmed that the situation at the Ottawa airport had been reviewed and rectified
following the complaints filed by the applicants. Air Canada attendants can now make passenger
announcements concerning baggage carousel changes themselves. She also confirmed that a system
for broadcasting pre-recorded messages would be installed in 2011, which would make compliance
with linguistic requirements for public announcements easier.
[124] Ms. Dugas also drew attention to the language training programs given to employees and
the substantial amounts of money invested in language training. She specified that between 2005
and 2009, of a total of almost 10,000 Air Canada employees in contact with the public, 1,470
employees on average received French language training. In cooperation with Jazz, Air Canada has
also developed French language training programs for Jazz employees. She stated that Air Canada
regularly monitored Jazz. Ms. Dugas presented the following picture of the language proficiency of
Air Canada personnel as of March 15, 2010:
• 47 percent of flight attendants could be considered to be bilingual;
Page: 62
• 26 percent of Air Canada airport employees who were in contact with the public could be
considered to be bilingual;
• 59 percent of Air Canada call centre employees could be considered to be bilingual.
[125] Ms. Dugas stated that Air Canada has a sufficient number of bilingual flight attendants to
provide services in French on all flights on which there is significant demand for services in French,
on both automatically and survey-designated flights. In airports, Air Canada has a sufficient number
of bilingual employees to ensure that service can always be provided to passengers in both official
languages.
[126] Air Canada is of the view that it has a good complaints track record and that the number of
complaints must be analyzed in the light of the number of contacts Air Canada passengers have with
the company’s employees. The affidavit of Ms. Dugas contains a table of data on complaints that
differ slightly from the data presented by the Commissioner. She states that the total number of
complaints have dropped from an average of 85 a year between 2000 and 2004 to an average of 54
between 2005 and 2009. Complaints about in-flight services, for both Air Canada and Jazz, dropped
from an average of 25 a year for 2000 to 2004 to an average of 15 for 2005 to 2009. She also stated
that since 2007, at the time of the last update of survey-designated flights on which there is
significant demand, only 9 complaints about service in French regarding these flights were received
by the Commissioner; these included the applicants’ 6 complaints.
[127] Ms. Dugas stated that, over the last 3 years, Air Canada has carried about 32,300,000
passengers a year (including on flights operated by Jazz) with about 5 to 6 points of contact with an
Page: 63
Air Canada employee per passenger and that the complaint ratio was an average of 53 complaints a
year (for 2007 to 2009) for at least 161,500,000 points of contact a year, that is 0.000033 percent at
the most.
[128] Air Canada submits that these data clearly show that there is no systemic problem.
[129] Air Canada’s evidence also includes the affidavit of Ms. Stuart, Jazz’s manager of
communications.
[130] Jazz is Air Canada’s seat capacity supplier and operates short- and medium-haul flights for
the airline. On behalf of Air Canada, Jazz operates about 840 flights a day to over 85 destinations in
North America (including 57 in Canada and 28 in the United States). In total, it operates about 140
different routes in its network.
[131] Ms. Stuart reported on the significant progress made by Jazz when it comes to language
issues. She stated that on January 1, 2001, about 27 percent of the flight attendants of all the merged
regional carriers were sufficiently proficient in French. She added that since then, substantial sums
have been invested and that major training programs have been created. Jazz has invested over
13 million dollars in giving its flight attendants French language training since September 30, 2004.
Since 2001, Jazz prioritizes hiring flight attendants that can provide service in both languages.
Employees receive training and their language skills are verified regularly.
Page: 64
[132] Ms. Stuart pointed out that approximately 61 percent of Jazz flight attendants are now able
to provide service in French. The highest concentration of bilingual flight attendants can be found in
eastern Canada (Halifax, Montréal and Toronto), where demand for service in French is higher.
Ms. Stuart confirmed that Jazz had enough staff to provide services in French on all its flights on
which there is significant demand and which start or finish in Ontario, Québec and the Maritime
provinces.
[133] She recognized, however, that the situation is more delicate when it comes to flights
operated in the provinces to the west of Ontario where, even though there are no automatically
designated routes on which there is significant demand for services in French, some flights are
considered to have significant demand as a result of the surveys carried out. Ms. Stuart indicated
that Jazz prioritizes the hiring of bilingual employees, but that there are fewer bilingual flight
attendants at Jazz’s Vancouver and Calgary bases to operate these routes. Ms. Stuart also stated that,
depending on the time of the flight, employee assignments and unexpected, last-minute events, Jazz
may, on occasion, not be able to assign a bilingual employee to one of the flights on the eight
western routes. She indicated that Jazz was focussing on training employees at these bases to be
able to provide services in French as widely as possible on these eight routes, while promoting the
hiring of bilingual flight attendants.
[134] Ms. Stuart reported on the changes and rectifications made by Jazz after the applicants filed
their complaints. She indicated that the flight attendants assigned to the flights taken by the
applicants were enrolled in language training programs.
Page: 65
[135] She also explained that flight crews were constituted using the flight assignment system,
which prioritized seniority and bilingualism, and that Jazz was currently implementing the
necessary measures so that routes designated by survey as having significant demand for services in
French are identified in the flight assignment system.
[136] Ms. Stuart emphasized the relative nature of the number of complaints filed against Jazz.
She stated that in 2009, 13 complaints (including the applicants’ 6 complaints) were filed in regard
to flights operated by Jazz. In 2008, there were 17 complaints; 6 in 2007; 6 in 2006; and 12 in 2005.
Ms. Stuart stated that there was no systemic problem, given that, over the last 3 years, Jazz had
transported about 9,400,000 passengers per year, each of whom had about 5 or 6 points of contact
with a Jazz employee. She indicated that the ratio of language complaints represented an average of
12 complaints for about 47 million points of contact, representing a ratio of 0.0000255 percent.
[137] In the light of the evidence, Air Canada vigorously rejects any allegation of there being
systemic problems. It admits that occasional breaches of its duties may occur, but submits that,
generally, it is able to comply with them and that the situation therefore hardly shows a systemic
problem that calls for institutional orders.
[138] Air Canada argues that the events that led the courts to make institutional orders in Doucet-
Boudreau and Fédération Franco-ténoise were completely different from the facts in this case: in
both cases, the evidence of violations was overwhelming, and these were considerably more serious.
Page: 66
[139] Air Canada also refers to Forum des maires to support its position. In that case, the Federal
Court of Appeal refused to cancel an administrative reorganization because the language rights
violations were sporadic.
[140] The Commissioner supports the application for institutional orders. He submits that Air
Canada has failed to show that the situation resulting in the breaches of its duties have been fully
rectified. He also submits that the similar complaints filed by the applicants and his annual reports
show that there is a systemic problem, which has persisted for over a decade. He submits that the
remedies provided for by the OLA will be useful, effective and complete only if institutional orders
are rendered.
[141] Although the parties did not directly address the matter, I believe it to be pertinent, for the
purpose of determining whether the evidence shows that there were systemic breaches, to consider
the extent of the duties imposed on Air Canada by the OLA.
[142] Section 10 of the ACPPA makes Air Canada subject to the OLA. It is helpful to reproduce
again the first two subsections hereunder:
10. (1) The Official Languages
Act applies to the Corporation.
Duty re subsidiaries
(2) Subject to subsection (5), if
air services, including
incidental services, are provided
or made available by a
subsidiary of the Corporation,
10. (1) La Loi sur les langues
officielles s’applique à la
Société.
Communication avec les
voyageurs
(2) Sous réserve du paragraphe
(5), la Société est tenue de
veiller à ce que les services
aériens, y compris les services
connexes, offerts par ses filiales
Page: 67
the Corporation has the duty to
ensure that any of the
subsidiary’s customers can
communicate with the
subsidiary in respect of those
services, and obtain those
services from the subsidiary, in
either official language in any
case where those services, if
provided by the Corporation,
would be required under Part
IV of the Official Languages
Act to be provided in either
official language.
à leurs clients le soient, et à ce
que ces clients puissent
communiquer avec celles-ci
relativement à ces services,
dans l’une ou l’autre des
langues officielles dans le cas
où, offrant elle-même les
services, elle serait tenue, au
titre de la partie IV de la Loi sur
les langues officielles, à une
telle obligation.
[143] In Thibodeau 1, Justice Beaudry ruled that the OLA imposed an obligation of result on Air
Canada instead of an obligation of means. The Supreme Court of the Northwest Territories ruled
similarly in Fédération franco-ténoise. On appeal in Thibodeau, the Commissioner submitted that
the duties imposed by the OLA should not be defined according to a civil law approach. In Air
Canada v Thibodeau, 2007 FCA 115, 165 ACWS (3d) 542, the Federal Court of Appeal decided
that it did not have to rule on this issue since there was no evidence on record to give rise to a due
diligence defence, but it nonetheless commented on the matter.
[144] I am of the opinion that it is not necessary for me to determine whether Air Canada is
subject to an obligation of result or an obligation of means according to a civil law approach. It
suffices to note that the ACPPA imposes a clear duty on Air Canada, which “has the duty to ensure”
(in French, Air Canada is “tenue de veiller à”). The OLA imposes clearly set out duties that are not
formulated as powers whose exercise is optional. In my view, the duties that were imposed by
Parliament require Air Canada to make every reasonable effort to fulfill its duties.
Page: 68
[145] My analysis of all the evidence leads me to conclude that Air Canada and Jazz make
considerable efforts and invest substantial sums to comply with their linguistic duties. I agree that
Jazz’s and Air Canada’s track record in terms of their employees’ language skills has improved over
the last 10 years. I also agree that it is more difficult to hire bilingual staff in the western provinces
than it is in Quebec, Ontario and the Maritime provinces.
[146] I note, however, that not everything is perfect and that more remains to be done, particularly
at Jazz, which admits that it is not always able to provide bilingual service on the routes identified as
having significant demand for services in French based on the surveys. It is useful here to
reproduce the following excerpt from Ms. Stuart’s affidavit:
[TRANSLATION]
. . .
38. However, the situation is more delicate when it comes to flights
operated in the provinces to the west of Ontario, where certain routes
are considered to have significant demand according to survey
results, even though there are no automatically designated routes on
which there is significant demand in these provinces.
39. Indeed, Jazz has fewer bilingual flight attendants at its Vancouver
and Calgary bases to operate these routes. Depending on the time of
the flight, staff assignments and last-minute unexpected events, Jazz
may occasionally not be able to assign a bilingual employee to a
flight on which there is considered to be significant demand, namely,
a flight operated on one of the following eight routes:
Vancouver–Victoria
Calgary–Castlegar
Calgary–Winnipeg
Calgary–Victoria
Edmonton–Fort McMurray
Edmonton–Winnipeg
Edmonton–Yellowknife
Winnipeg–Regina
Page: 69
. . .
[Emphasis added.]
[147] Air Canada argued that the ratio of complaints filed was low. It is true that the number of
complaints filed against Air Canada and/or Jazz is low considering the number of points of contact
between passengers and Air Canada and Jazz employees. However, although the number of
complaints can serve as an indicator of the level of client satisfaction or even the level of
dissatisfaction with the French services offered by Air Canada and Jazz, it is not necessarily a
reliable indicator of Air Canada’s and Jazz’s actual performance in terms of language rights. This
conclusion is supported by an analysis of the evidence. Jazz has admitted that the two flight
attendants on the flights taken by the applicants and who were not able to ensure service in French
continued to be assigned to flights on which there is significant demand for services in French, on
over 200 occasions. On each of these occasions, Air Canada breached its language duties. Yet, other
than the complaints filed by Mr. and Mrs. Thibodeau, no other complaint was filed concerning these
breaches.
[148] I therefore conclude that, given the evidence, the number of complaints filed is not
necessarily a reliable indicator of Air Canada’s actual performance and the number of times Air
Canada and Jazz breached their linguistic duties.
[149] I also conclude that, although the number of complaints filed against Air Canada is lower
than it was in the early 2000s, Air Canada is still the subject of a considerable number of
complaints, all of which are similar to the complaints impugned herein.
Page: 70
[150] I am also struck by the fact that some of the major improvements made by Jazz and Air
Canada were implemented following Mr. and Ms. Thibodeau’s complaints and, at the Halifax
airport, following Mr. Léger’s complaints. It seems undeniable that it was the vigilance of these
users of Air Canada services that led Air Canada and Jazz to make changes to their procedures and
equipment in order to improve the provision of services in French. It is all the more troubling to
note that, had it not been for Mr. and Ms. Thibodeau’s complaint, Jazz’s staff assignment system
would probably still not be identifying flights on which there is significant demand for services in
French that are not automatically so designated and which require bilingual personnel. Given the
unequivocal duties imposed on Air Canada by the OLA and the Regulations, it would have been
fundamental for Jazz, after all these years, to have a staff assignment system that identifies all routes
requiring bilingual personnel. This is the least that can be done to ensure that services are provided
in compliance with the OLA.
[151] I am equally surprised by the fact that Jazz does not seem to have a monitoring system that
enables it to determine the number of times where no bilingual flight attendant is assigned to a flight
on which there is significant demand for services in French. In his examination on affidavit of
Ms. Stuart, Mr. Thibodeau asked her how often Jazz assigned flight attendants who did not meet the
minimum language requirements (Level 2C) to provide services in French on flights on which there
is significant demand on which there was a single flight attendant. Ms. Stuart replied that Jazz did
not have these figures and that they could not be determined automatically through the flight
assignment system.
Page: 71
[152] It is essential that Air Canada provide French-language training so that Air Canada and Jazz
employees can improve and maintain their language skills, but it is equally important for the airline
to have a procedure for measuring its actual performance regarding its official languages duties.
[153] I therefore find that, even though Air Canada is making efforts to comply with its linguistic
duties, problems persist, and both Air Canada and Jazz have not completely developed a reflex to
proactively implement all the tools and procedures required to comply with their duties, to measure
their actual performance in the provision of services in French and to set improvement objectives.
This finding, combined with Jazz’s admission that it still has difficulty complying with all its duties,
leads me to conclude that there is a systemic problem at Air Canada. However, my conclusion
should not be understood as being a finding that there is a general problem within the organization. I
do mean a "systemic problem", as opposed to one-off or isolated problems that are out of Air
Canada’s control. I recognize that it is impossible to be perfect, and despite all efforts, there are
always likely to be flaws. It is my view, however, that the breaches in question cannot be
characterized as being isolated or out of Air Canada’s control. In fact, Air Canada itself does not
seem to know how often it fails in its duties. As is noted in Fédération Franco-ténoise, at para 862,
“[f]urther, it is difficult for the [Government of the Northwest Territories] to maintain that it “is
doing its best”, in the absence of a regular, well established process for auditing the available
services.” I find that at Air Canada, and particularly at Jazz, there are procedures that are likely to
create situations in which Air Canada is unable to fulfill all its language rights duties or to verify to
what extent it breaches its duties.
Page: 72
[154] I therefore conclude that it is fair and appropriate to require that Air Canada make every
reasonable effort to fulfill all its duties under Part IV of the OLA and to ensure that it implement a
monitoring process to allow it to identify and document the occasions on which Jazz does not assign
the required bilingual personnel on board flights on which there is significant demand for services in
French.
[155] I agree that the facts in this case differ from the facts in Doucet-Boudreau, Fédération
franco-ténoise and Forum des maires, but there is no catch-all method or grading system for
determining the level at which language rights violations warrant the issuance of institutional orders.
Every case has to be reviewed on its own merit, and the fair and appropriate remedy must be
determined in the light of the context and the particular circumstances of the organization and the
breaches in question.
(3) Is it appropriate and just to award punitive and exemplary damages?
[156] Mr. and Ms. Thibodeau are asking the Court for $500,000 in exemplary and punitive
damages. They base their claim on the systemic nature of Air Canada’s breaches and on the
arrogant attitude of Air Canada employees.
[157] In de Montigny, the Supreme Court reiterated the guiding principles on exemplary damages:
47 While compensatory damages are awarded to compensate for
the prejudice resulting from fault, exemplary damages serve a
different purpose. An award of such damages aims at expressing
special disapproval of a person’s conduct. and is tied to the judicial
assessment of that conduct, not to the extent of the compensation
Page: 73
required for reparation of actual prejudice, whether monetary or not.
As Cory J. stated:
Punitive damages may be awarded in situations where the
defendant’s misconduct is so malicious, oppressive and
high‑ handed that it offends the court’s sense of decency.
Punitive damages [page88] bear no relation to what the
plaintiff should receive by way of compensation. Their aim is
not to compensate the plaintiff, but rather to punish the
defendant. It is the means by which the jury or judge expresses
its outrage at the egregious conduct of the defendant.
(Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R.
1130, at para. 196)
. . .
[158] The applicants allege that the violation of their lingustic rights was aggravated by Air
Canada employees’ conduct during the incidents that resulted in the present proceeding, which they
describe as malicious, oppressive and reprehensible. Mr. Thibodeau described three incidents.
[159] In his affidavit, Mr. Thibodeau described the incident involving the carousel change
announcement at the Ottawa airport on February 1, 2009, as follows:
[TRANSLATION]
. . .
17. I was at the Air Canada baggage counter, and I asked why
there had been no French announcement. The person at the counter
did not speak French. He went to get someone who spoke French. I
asked him why there had been no announcement in French about the
baggage that had been redirected to Carousel No. 4. He said that he
could make one.
18. Several minutes went by, and still there was no
announcement in French. I returned to the Air Canada counter. The
employee I spoke to was the same employee I had spoken to earlier
at the counter and who had told me that he could make an
Page: 74
announcement in French. I asked him why there had been no
announcement in French. He told me to give him a minute since he
was in the middle of eating a sandwich.
19. He laughed, and I asked him why he was laughing. I told him
that this was not funny. I told him that Francophones were entitled to
the same services as Anglophones.
20. I told him that the announcement informing the passengers
should be made right away. Nonchalantly, he again said to give him
a minute. I told him that I would make a complaint. I asked him his
name, and he did not want to give it to me.
21. At 6:20 p.m., there had still not been an announcement in
French, and I left the airport with my family and my luggage.
Carousel 4 was almost deserted, people having already taken their
luggage and left. No announcement in French was ever made to
inform Francophone passengers that their luggage had been
redirected from Carousel 3 to Carousel 4.
. . .
[160] Mr. Thibodeau also criticized the attitude of a flight attendant on the flight from Charlotte to
Toronto on May 12, 2009. His affidavit contains the following statements:
[TRANSLATION]
31. When I boarded the plane at 11:00 a.m., I said hello to the
flight attendant. She replied in English. I asked her whether she
spoke French, and she said “no” in English. She said that there was
no service in French. So, no active offer of services in French, and no
service in French on that flight.
. . .
33. At ten past eleven, the flight attendant came by, and she
stopped to tell me that she was not obliged to speak French, that she
and several other unilingual English flight attendants had been hired
in the Nineties and that service in French was not mandatory.
34. With a sarcastic smile, she asked Lynda and me whether we
were from Quebec. We replied that we lived in Ontario, in Ottawa. I
asked her her name as I was going to file a complaint about the lack
of service in French. . . .
Page: 75
38. At 11:46 a.m., the flight attendant came by and asked my
wife and me, “Anything to drink folks?” Lynda said, “Rien merci”
[No, thank you]. I told her “Je vais prendre un 7-Up s.v.p.” [I would
like a 7-Up, please]. She served me a Sprite.
. . .
[161] Regarding the baggage announcement incident at the Toronto airport, Mr. Thibodeau made
the following statements in his affidavit:
[TRANSLATION]
. . .
40. Upon arrival of flight AC 7923 in Toronto, my wife and I
went to get our luggage. We were close to the carousels where the
baggage was to arrive. An announcement was made over the airport
loudspeaker at around 1:20 p.m. for the passengers from flight
AC 7923, telling them where to pick up their luggage, at
Carousel 11, and giving them instructions for connecting flights. The
announcement was made only in English.
41. I went to the Air Canada counter close to Carousel 11, and
there were two people there, a man and a woman. I said hello and
asked the man whether he spoke French. He said no. I asked the lady
the same thing, and she, too, did not speak French.
42. I asked the man in English whether it was he who had made
the baggage announcement over the loudspeaker, and he said yes. I
asked why the announcement had not been made in French, and he
said that he did not speak French.
43. He continued by saying that airport staff made the
announcements. I replied that he had just made an announcement for
passengers from the Jazz Air flight. He answered that he made the
announcements for [TRANSLATION] “his passengers”. I told him that I
was one of [TRANSLATION] “his passengers”. He then said to me that
I spoke English and wondered “so what’s the problem?”.
44. At 1:23 p.m., while I was still at the counter, he made the
same announcement again over the airport loudspeaker, informing
passengers from flight AC 7923 where to pick up their luggage.
Again, the announcement was made only in English.
Page: 76
45. I told him that I was entitled to the same service as
Anglophone passengers. He replied in English that if I needed
service in French, he would get it. I answered that I wanted the
announcement that had been made in English to also be made in
French. He replied that he could not do that since he did not speak
French. He said that I could ask the airport authorities for an
announcement to be made in French.
46. At 1:27 p.m., while I was still at the counter, he again made
the announcement over the airport loudspeaker informing passengers
from flight AC 7923 where to pick up their luggage. Again, the
announcement was made only in English.
47. I told him that I was not going to run around the airport to get
someone to make an announcement in French. He said that if I was
not happy, I could go and see his manager a little further away in the
airport to get someone to make an announcement in French.
48. I asked him to call his manager himself to get someone to
make the announcement in French, and he failed to do so. He
reiterated that if I needed a service in French, he could manage to
give it in French. I repeated that what I wanted was for the baggage
announcement that had been made in English to be made in French.
He said that that he could not do that.
. . .
[162] Air Canada denies that its employees or Jazz’s employees displayed an arrogant attitude
towards the applicants and submits that, to the contrary, they attempted to help the applicants.
[163] First, I exclude the incident that occurred at the Ottawa airport since the evidence makes it
impossible to conclude that Air Canada breached its duties. Regarding the incident on board the
Charlotte–Toronto flight, it is my view that the evidence does not indicate that the flight attendant
was arrogant or condescending.
Page: 77
[164] Regarding the third incident, I note that the Air Canada employee made no effort to ensure
that the applicants received the service in French to which they were entitled. On the contrary, he
displayed a nonchalant attitude trivializing the applicants’ rights. In view of the evidence, it seems
that that was an isolated incident. Hence, the attitude of Air Canada’s employees and Air Canada
itself in no way calls for an award of exemplary damages. The evidence does not reveal a malicious,
oppressive and high-handed attitude on the part of Air Canada that would call for such a remedy. As
I have concluded previously, Air Canada does not do enough to comply with its duties under the
OLA; that being said, her breaches are not such that the imposition of a "penalty" is warranted.
IV. Costs
[165] Under the Federal Courts Rules, SOR/98-106 (the Rules), the Court has power over the
amount of costs (subsection 400(1) of the Rules). The factors that the Court may consider when
exercising this discretion are set out at subsection 400(3) of the Rules.
[166] The applicants are seeking disbursements in the amount of $1,982.19 and fees in the amount
of $3,500 each for a total of $7,000. Mr. Thibodeau explained that he had spent approximately 250
to 300 hours to prepare the case and that Ms. Thibodeau had spent about 75 hours to do so.
[167] Air Canada admitted at the hearing that this case raised important issues and agreed to pay
$4,000 to Mr. Thibodeau and $1,000 to Ms. Thibodeau for costs. Air Canada did not challenge the
amount of the disbursements claimed by the applicants.
Page: 78
[168] Air Canada’s proposal seems reasonable to me and, in the exercise of my discretion, I award
the applicants the total amount of $6,982.19 in costs, including the disbursements.
Page: 79
JUDGMENT
THE COURT ALLOWS this application;
DECLARES that Air Canada breached its duties under Part IV of the Official Languages Act. More
specifically, Air Canada breached its duties by
• failing to offer services in French on board (Jazz-operated) flight AC8627, a flight on which
there is significant demand for services in French, on January 23, 2009;
• failing to translate into French an announcement made in English by the pilot who was the
captain of (Jazz-operated) flight AC8622 on February 1, 2009;
• failing to offer service in French on board (Jazz-operated) flight AC7923, a flight on which
there is significant demand for services in French, on May 12, 2009;
• making a passenger announcement regarding baggage collection at the Toronto airport on
May 12, 2009, in English only.
ORDERS Air Canada to
• give the applicants a letter of apology containing the text appearing in Schedule “A” to this
order, which is the text of the draft apology letter filed by Air Canada;
• make every reasonable effort to comply with all of its duties under Part IV of the Official
Languages Act;
• introduce, within six months of this judgment, a proper monitoring system and procedures
to quickly identify, document and quantify potential violations of its language duties, as set
out at Part IV of the OLA and at section 10 of the ACPPA, particularly by introducing a
Page: 80
procedure to identify and document occasions on which Jazz does not assign flight
attendants able to provide services in French on board flights on which there is significant
demand for services in French;
• Pay the amount of $6,000 in damages to each of the applicants.
• Pay the applicants the total amount of $6,982.19 in costs, including the disbursements.
“Marie-Josée Bédard”
Judge
Page: 81
SCHEDULE “A”
[TRANSLATION]
AIR CANADA
Linguistic Affairs
P.O. Box 14000, Station Airport
Z1P 1230
Dorval, Quebec H4Y 1H4
March 28, 2011
Lynda Thibodeau
Michel Thibodeau
Ottawa, Ontario
Dear Mr. and Ms. Thibodeau:
In my capacity as general manager of Air Canada’s Linguistic Affairs Division and on behalf of Air
Canada, I would like to apologize that you were unable to receive service in the official language of
your choice, a service to which you were entitled, on the following flights:
AC8627, January 23, 2009
AC8622, February 1, 2009 (only with regard to the pilot’s announcement about arrival time
and the temperature at destination)
AC7923, May 12, 2009
This apology also applies to the baggage collection announcement and your visit to the baggage
counter at Toronto Pearson Airport on May 12, 2009.
Air Canada has followed up with the employees involved in the incidents and reminded them of the
language policy. Moreover, an awareness workshop was given to all agents assigned to the baggage
counter in Toronto.
Both Air Canada and Jazz, which operated the abovementioned flights on behalf of Air Canada, are
aware of their language duties and responsibilities and understand the importance of offering service
in both official languages to Air Canada’s customers.
I understand your dissatisfaction and your disappointment, and I would like to assure you that Air
Canada and Jazz take their language responsibilities very seriously and are constantly working to
offer their clients service in the official language of their choice.
Yours sincerely,
Chantal Dugas
General Manager, Linguistic Affairs
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-450-10 and T-451-10
STYLE OF CAUSE: MICHEL THIBODEAU ET LYNDA THIBODEAU
v.
AIR CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 28 and 29, 2011
REASONS FOR JUDGMENT
AND JUDGMENT: Justice Marie-Josée Bédard
DATED: July 13, 2011
APPEARANCES:
Michel Thibodeau
Lynda Thibodeau
FOR THE APPLICANTS
David Rheault
Louise-Hélène Sénécal
FOR THE RESPONDENT
Pascale Giguère
Ghady Thomas
FOR THE INTERVENER
SOLICITORS OF RECORD:
FOR THE APPLICANTS
David Rheault
Louise-Hélène Sénécal
Dorval, Québec
FOR THE RESPONDENT
Kevin Shaar
Pascale Giguère
Ghady Thomas
Ottawa, Ontario
FOR THE INTERVENER
