Wednesday, July 27, 2011

Federal Court of Canada Date : 20110713 Dockets: T-450-10 Citation: 2011 FC 876

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. . . .

Page: 48

[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.

Page: 52

[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

Summary: IN THE MATTER OF MICHEL THIBODEAU et al v. AIR CANADA et al

IN THE MATTER OF MICHEL THIBODEAU et al v. AIR CANADA et al


Summary: This is an application for a remedy made under subsection 77(1) of the

Official Languages Act, in which the applicants allege that the respondent failed to

provide them with services in French during certain flights for which it was required to

offer services in both official languages. Upon review, the Court concludes that the

respondent has not met its linguistic obligations under the Act. The Court orders the

respondent to pay the applicants $12,000 in damages and send them an apology, to make

every reasonable effort to fulfill its duties under the Act, and to introduce a system which

identifies, documents and quantifies potential violations of its linguistic obligations. The

Court, however, recognized that the respondent was in good faith and made considerable

efforts to respect its linguistic obligations. The Court refused to order the respondent to

pay punitive and exemplary damages.

****

Andrew Baumberg

Media Contact / Liaison avec les Médias

Federal Court / Cour fédérale

Tel. / Tél. : (613) 947-3177

Tuesday, July 26, 2011

The Canadian government has now appointed an official arbitrator to negotiate the details of a new contract between Canada Post and the Canadian Union of Postal Workers (CUPW). : Canada’s Labour Minister Lisa Raitt said on Friday she had appointed the Honourable Justice Coulter Osbourne to direct the final talks between the Corporation and the union’s Urban Operations Unit.

The Canadian government has now appointed an official arbitrator to negotiate the details of a new contract between Canada Post and the Canadian Union of Postal Workers (CUPW).






Canada’s Labour Minister Lisa Raitt said on Friday she had appointed the Honourable Justice Coulter Osbourne to direct the final talks between the Corporation and the union’s Urban Operations Unit.



A member of Canada’s Olympic basketball team in the Melbourne Games of 1956, Justice Coulter has been practicing law since 1959, and was appointed to the Supreme Court of Ontario, High Court of Justice, in 1978.



He was subsequently appointed to the Court of Appeal for Ontario in 1990 and was Associate Chief Justice of Ontario in 1999.



Over the last few years, he has completed a major review of the civil justice system for the Attorney General and has been engaged in a number of dispute resolutions, mediations and arbitrations.



“Justice Osborne has accumulated a wealth of experience as a law practitioner and his experience will be invaluable in settling outstanding matters,” said Minister Raitt. “I urge both parties to extend their full co-operation to him.”



Members of the CUPW urban unit went back to work at the end of June after almost a month of strike action and operational shut-down as a result of failure to agree a new collective bargaining agreement with Canada Post.



Back-to-work legislation forced a new deal between the two sides, including salary levels, but left details and conditions for an arbitration process to decide.



Minister Raitt’s office said both sides will now present their final offer for Justice Osborne to decide on a new agreement. From the time offers are presented, the arbitrator will have 90 days to set out his decision, although the government can provide an extension if required.