Tuesday, September 23, 2014

The Federal Court is Canada Date: 20140908 Docket: T-1288-10 Citation: 2014 FC 849 Ottawa, Ontario, September 8, 2014 copy



Date: 20140908Docket: T-1288-10Citation: 2014 FC 849Ottawa, Ontario, September 8, 2014PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:


THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA AND

DR KARIM AMELLAL


Applicants


and


CBC/RADIO-CANADA


Respondent


JUDGMENT AND REASONS

[1] This judgment follows a stay of proceedings by interim order of the Court dated May 29, 2012: Canada (Commissioner of Official Languages) v CBC/Radio-Canada, 2012 FC 650, [2014] 1 FCR 142 [interlocutory decision].

[2] The Court, in the exercise of its discretion, is faced with two issues to determine today:

1. Should the Court issue a final judgment on enforcement and jurisdictional issues addressed in the interlocutory decision?

2. Would it be appropriate to lift the stay and resume proceedings in light of recent developments since the interlocutory decision?

[3] For the reasons that follow, the Court has decided to render final judgment on issues of enforcement and jurisdiction dealt with in the interlocutory decision. However, being of the view that it would not be appropriate, in light of recent developments since the interlocutory decision, to lift the stay and resume proceedings, the Court declares a permanent stay of proceedings.
Background

[4] The facts underlying this proceeding, commenced in 2010 by the Commissioner of Official Languages of Canada [Commissioner] under Part X of the Official Languages Act, RSC 1985, c 31 (4th Supp) [OLA], have already been thoroughly reviewed in the interlocutory decision. For the purposes herein, I will only review certain general elements.

[5] In 2009, the Canadian Broadcasting Corporation/Société Radio-Canada [Corporation] made substantial nationwide budget cuts. In the case at bar, Francophones in the southwestern region of Ontario, including Dr. Karim Amellal, complained to both the Commissioner and the Canadian Radio-Television and Telecommunications Commission [CRTC], about the negative impact of the reduction in local or regional content in programming at radio station CBEF 540 in Windsor [CBEF Windsor], the only French-language radio station in southwestern Ontario. But the issue does not end with CBEF Windsor. Thousands of the national public broadcaster’s radio listeners and television viewers throughout the country are asking themselves the same question: where is the Corporation headed? In particular, Official Language Minority Communities [OLMCs] feel threatened. Each new wave of cuts at the Corporation – the ones in 2009 were not the first, nor are they the last – leaves a bitter taste. To many, it is an unacceptable disenfranchisement on the part of a federal institution that has over the years acquired an iconic status in terms of the promotion of linguistic duality and the development of official language groups.

[6] In order to stay afloat, the Corporation needed to reduce its operating expenses following a shortfall of $171 million for the 2009-2010 fiscal year alone. The Corporation adopted a Recovery Plan which would eventually eliminate some 800 positions, including 336 employees in the French Services. Among other things, CBEF Windsor would lose seven of its ten employees and three programs that were still produced locally. The net result in southwestern Ontario: a reduction of local or regional content in programming, from approximately 36.5 hours (before the cuts) to about 5 hours per week in July 2009. This is far too little, too little for the thousands of loyal listeners who mobilized to save the local station and created the Comité SOS CBEF.

[7] When the CRTC was slow to act and the Ontario Superior Court held that it did not have jurisdiction in the matter, the Commissioner began an investigation pursuant to section 56 of the OLA. But the Commissioner came up against a wall. The Corporation refused all cooperation with him in this regard: it was of the view that is was not accountable to the Commissioner, nor did it have any language obligations under the OLA with respect to its programming activities, which were already regulated by the CRTC. Nevertheless, in his final report, the Commissioner noted that the Corporation had not held prior consultations or conducted an impact analysis of its decision. The negative impacts of the cuts on the development of Windsor’s tiny Francophone community were vigorously denounced by the Commissioner. In that case the Commissioner found that there had been a failure to comply with subsection 41(2) of the OLA, which requires that federal institutions take “positive measures” to enhance the vitality of Canada’s English and French linguistic minority communities and assist their development. The Commissioner urged the Corporation to act and review its decision. The Corporation ignored his recommendations. In 2010, the Commissioner commenced this proceeding.

[8] In short, in his amended notice of application, the Commissioner asked the Court to make various declarations under section 77 of the OLA – and section 18 of the Federal Courts Act, SCR 1985 c F-7 [FCA], if necessary – to the effect that: the respondent is subject to the OLA, particularly Part VII; the Commissioner had jurisdiction to investigate the complaints regarding the budget cuts; the respondent failed to comply with section 41 of the OLA; it must review its decision concerning CBEF Windsor and make the necessary arrangements to compensate for the negative impact of its budget cuts on the OLMC of southwestern Ontario. For his part, Doctor Amellal, as additional relief, sought a permanent injunction forcing the respondent to return to the previous number of local and regional production hours, if it did not return to broadcasting the programs previously aired by CBEF Windsor that were cancelled following the budget cuts.

[9] In the winter of 2012, the Court agreed to hear the motion for summary dismissal of the present proceeding made by the respondent. On either side, the parties disputed the exclusivity of jurisdiction attributed to the Commissioner and the Federal Court on one hand, and to the CRTC, on the other. Although the respondent acknowledges that its “non-programming” activities are subject to the OLA , it argues that its programming services – radio and television – are subject to the Broadcasting Act, SC 1991, c 11 [BA], and that under sections 3, 12, 18, 19, 23 to 25 of the BA, the CRTC has exclusive jurisdiction in those matters. For their part, the applicants object to the motion to dismiss and in turn argue that there is no conflict between the BA and the OLA, that the Commissioner has exclusive jurisdiction under section 56 of the OLA to investigate any violation of the OLA, while the Federal Court has exclusive jurisdiction under section 77 of the OLA to grant such remedy as it considers appropriate and just in the event of noncompliance with the duty set out at subsection 41(2) of the OLA.

[10] On May 29, 2012, being of the opinion that the Corporation was subject to the OLA in all of its activities and having opted for the concurrent jurisdiction model, the Court ordered an interim stay of proceedings in this case. The reasons for which the Court decided to exercise its judicial discretion in this way stem primarily from the Court’s view, at that stage, that the CRTC was an appropriate forum, and that it was “in a better position than the Federal Court to determine the dispute on the merits and to grant the applicants appropriate relief, if applicable” (interlocutory decision, para 92).

[11] At paragraphs 99 to 103 of its interlocutory decision, the Court notes:

99 Given the current climate of uncertainty and the Court’s wish to spare the parties additional or unnecessary costs by forcing them to engage in long and costly legal proceedings having outcomes that are necessarily unknown, and rather than summarily dismissing this application today, I am exercising my judicial discretion. It seems to me that the fairest and most equitable course is to order a stay of proceedings in this file while safeguarding the rights of the parties.

100 As Madam Justice Abella of the Supreme Court of Canada (writing on behalf of Justices LeBel, Deschamps, Charron and Rothstein) emphasized in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422 (Figliola), at paragraph 1:

[l]itigants hope to have their legal issues resolved as equitably and expeditiously as possible by an authoritative adjudicator. Subject only to rights of review or appeal, they expect, in the interests of fairness, to be able to rely on the outcome as final and binding. What they do not expert is to have those same issues relitigated by a different adjudicator in a different forum at the request of a losing party seeking a different result. On the other hand, it may sometimes be the case that justice demands fresh litigation. [Emphasis added.]

101 Let us simply recall that final decisions and orders of the CRTC are subject to appeal, on an issue of law or a question of jurisdiction, to the Federal Court of Appeal – that is, on leave (subsection 31(2) of the BA), such that the "fairness" of the CRTC’s eventual decision on the merits "is not meant to be bait for another tribunal with a concurrent mandate" (Figliola, above, at paragraph 38).

102 Although the Federal Court is not a "tribunal", it is nonetheless the "Court" [page183] designated by Parliament to hear a complaint made under Part X of the OLA. However, the CRTC has made no decision as yet. To be prudent, jurisdiction should therefore be reserved in the interim.

103 Consequently, the interests of justice here require that the Court order a stay of proceedings under subsection 50(1) [mod. par L.C. 2002, ch. 8, art. 46] of the FCA during the time for the CRTC to make a decision, as part of the process to renew the Corporation’s licences, on any complaint or intervention made in respect of the decrease in the number of hours of local and/or regional programming broadcast by CBEF Windsor.

[12] By its order dated May 29, 2012, the Court also suspended the continuation of examinations of the respondent’s representatives and adjourned sine die the hearing on the merits of this case – which was set to begin on October 15, 2012. The Court ordered that once the CRTC made its decision regarding the applications for renewal of the Corporation’s licences, it would be open to any of the parties to ask the Court to extend or put an end to the stay of proceedings, to resume examining the record or to dismiss the application, having consideration for the applicable laws and all of the legal principles applicable in this case.

[13] In the meantime, public hearings regarding the renewal of the Corporation’s licences began in November 2012. Among those who actively participated were: the Commissioner, Doctor Amellal, members of the OLMC of southwestern Ontario, Francophone advocacy associations and the SOS CBEF Windsor committee. On May 28, 2013, the CRTC issued its final decision renewing the Corporation’s broadcasting licences for programming services for a period of five years, from September 1, 2013, until August 31, 2018, including CBEF Windsor and its transmitters: Broadcasting Decision CRTC 2013-263 and Broadcasting Orders CRTC 2013-264 and 2013-265 [2013 CRTC decision]. There is no application for judicial review or appeal before the Federal Court of Appeal against the 2013 CRTC decision.
Respective applications for summary dismissal and for recommencement of proceedings

[14] The probationary period provided to the parties to resolve their dispute and voluntarily put an end to these proceedings has expired. In August 2013, following a case management conference, the Court invited the parties to make written submissions regarding the continuance or dismissal of proceedings, including any request for final judgment (directions, August 12, 2013). Relevant excerpts from the CRTC file were filed with the parties’ consent in September 2013 (Volumes 1 to 24). The Commissioner and the Corporation filed their respective written submissions in October, then in November 2013 (in response). A public hearing was held on June 19 and 20, 2014. On that occasion, the parties agreed to have the Report of the Standing Senate Committee on Official Languages,CBC/Radio-Canada’s Language Obligations, tabled in April 2014 [Senate report], filed in the Court record.

[15] The Corporation is reiterating its previous objections and is asking that I, as trial judge, declare that the CRTC has exclusive jurisdiction over such matters, summarily dismiss this legal proceeding and issue any further order that the Court deems just and appropriate. This, in addition to stating that, alternatively, there is no need to hear the matter on the merits, given that the CRTC has already considered the language obligations of the national public broadcaster and prescribed the appropriate remedies in terms of both the hours of local programming on CBEF Windsor, and consultation with OLMC representatives (in the form of conditions of licence, expectations or wishes).

[16] The applicants, being rather of the opposite view that the response and prescribed remedies in the CRTC’s 2013 decision do not resolve the matter or go far enough, object to the summary dismissal of the case and to a ruling by the Court declaring that the CRTC has exclusive jurisdiction. They are instead asking that the Court lift the order to stay the proceedings, allow them to resume examination of the respondent’s representatives, establish a timetable for continuing the examinations and the filing of memoranda, and hold a hearing on the merits as soon as possible on the outstanding issues, namely, those involving the breach of the OLA and appropriate remedy in the circumstances.
Should the Court issue a final judgment on enforcement and jurisdictional issues addressed in the interlocutory decision?

[17] The parties agree that issues of enforcement of the Acts (OLA and BA) and jurisdiction essentially constitute questions of law and that these have already been dealt with by the Court in the interlocutory decision. However, spurred on by the fact that the decision handed down by the Court in May 2012 was only “interlocutory”, the respondent today is asking that I render final judgment concluding that the BA applies to the Corporation’s broadcasting activities and that the CRTC has exclusive jurisdiction to rule on any complaint by the Commissioner or by members of an OLMC that the Corporation is not in compliance with its language obligations. The respondent is inviting me to revise my earlier reasoning in light of an argument that is concisely centered on the overall intent of Parliament and on the completeness of the 2013 CRTC decision.

[18] First, the respondent, relying on Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General), [2004] 2 SCR 185, 2004 SCC 39 [Morin], reiterates that Parliament wanted issues regarding the regulation and oversight of the public broadcaster’s program offering, to be subject to the exclusive jurisdiction of the CRTC, which would include compliance with the language obligations set out in the BA and in the OLA, in an implicit manner. In particular, paragraphs 3(1)(i) and (m), subsections 3(2) and 5(1) of the BA are cited. As for whether subparagraph 3(1)(m)(iv) of the BA incorporates the obligations found in section 41 of the OLA with regard to programming, the respondent’s learned counsel suggested at the hearing that this provision showed Parliament’s “concern” about OLMCs. However, the needs of OLMCs constitute criteria that are enshrined in the BA, whereas CRTC practice is to integrate the objectives of the OLA in the implementation of its programming activities. This can be seen in the way quasi-constitutional values of the protection of minorities are reflected in the BA and the 2013 CRTC decision.

[19] Second, the respondent argues that the quasi-constitutional status of an act such as the OLA is not a factor that ought to be used to determine the choice of jurisdiction model between two different tribunals that could potentially be seized with the same matter (Charrette v R, [1980] 1 SCR 785). Moreover, subsection 41(2) of the OLA is not referred to at section 82, which grants precedence to certain parts of the statute. It is clear that Parliament did not wish for the Commissioner or the Federal Court to interfere, under Parts VII and X of the OLA, in areas that were already regulated by other federal authorities. Lastly, the respondent is of the view that adopting the concurrent jurisdiction model would lead to uncertainty as to the determination of the appropriate forum and risks of contradictory decisions.

[20] For his part, the Commissioner is categorical: the Court has already ruled in its interlocutory decision on enforcement and jurisdictional issues. It would therefore be contrary to the interests of justice to revisit the reasons underlying the concurrent jurisdiction model accepted by the Court in May 2012. On the contrary, the resumption of proceedings must rather serve to definitively resolve the two outstanding issues: (i) the violation of Part VII of the OLA; (ii) the remedy the Court may grant pursuant to section 77 of the OLA. In the final judgment, which will dispose of the issues related to the merits, the Court will have an opportunity to insert declarations on enforcement and jurisdictional issues.

[21] It is in the best interests of justice and of the parties to render a final judgment today on the enforcement and jurisdictional issues. The bond of trust between the Commissioner and the Corporation – federal institutions of paramount importance which are both renowned for their integrity and respected by the Canadian people as a whole – has been broken. This is regrettable. However, there is no avoiding the brutal choices that have been put to the Court by parties who have hitherto refused to budge from their positions.

[22] In its April 2014 report, the Senate Committee noted that the Court was to determine the issue in the near future (page 100) and

[r]ight now, stakeholders do not agree on the scope ofCBC/Radio-Canada’s obligations under Part VII of theOfficial Languages Act. Does the Corporation’s programming fall within the scope of these obligations? So far, this issue has been left to the Federal Court, which is re-examining the issue. A ruling may be handed down in the coming months. (Page 89)

[23] I am also taking into consideration the guidance provided by Justice Gauthier of the Federal Court of Appeal to the effect that the decision dated May 29, 2012, was “interlocutory” and that [translation] “these jurisdictional issues will be subject to a final judgment when the proceeding resumes” (Federal Court of Appeal Order, 12-A-33, July 31, 2012, page 2). By the same logic, I must do so having regard to all of the representations that have been made to me until this point, which of course includes the written submissions made by the parties in the fall of 2013 and the oral submissions by counsel in June of 2014.

[24] In proceeding with this review, I took a fresh look at the record in its entirety and the case law. I will not engage in any sophistry by noting that the essential questions were posed in May 2012 in the Court’s interlocutory decision. Nor do I believe that the respondent’s new submissions – so many variations on an already familiar theme – seriously challenge the inherent logic of the overall reasoning found in the Court’s interlocutory decision. By ordering an interim stay of proceedings, while at the same time opting for a concurrent jurisdiction model, the Court had already addressed the issues of enforcement, jurisdiction and appropriate forum. For the sake of brevity, I would suggest referring to the relevant paragraphs of the interlocutory decision. Furthermore, rather than repeat myself, it would be useful to make certain general or additional observations that would clarify the Court’s earlier reasoning or that are directly related to assertions and arguments reprised by both parties in their new submissions.
CBC/Radio-Canada and official language minorities

[25] I will begin by making a rather general observation: the State is at the service of the populace and its institutions are nothing if they cannot connect with the various communities that make up the nation’s social fabric. The Corporation is not an ordinary federal institution: the national public broadcaster has an obligation to broadcast radio and television programming across the country and in both official languages. This amazing potential for discourse makes it a formidable national vehicle for communication and information.

[26] Having said that, the Corporation is not an organization that exists to serve government; it exists exclusively to serve Canadians. Its unique place is due to the fact that under Canada’s broadcasting policy, the Corporation’s role is to inform and entertain, often in areas where private broadcasters would not dare to venture. In that regard, public policy dictates that that the regulation of the Corporation’s broadcasting activities, under the BA, falls within the CRTC’s jurisdiction. But is that sufficient to exempt from the enforcement of the OLA a federal institution whose continued existence in the radio and television landscape is largely dependent on its ability to respond to the specific needs of the principal linguistic communities it serves in each region of the country?

[27] How do we reassure Canadians, not only by the Canadian government’s discourse and the assurances of the Corporation’s management, but in actual fact, on the ground, far from the major production centres, that the public broadcaster offers – and above all will have the financial means to continue to offer – radio and television programming that reflects its language obligations, while responding to the vital needs of OLMCs, who should be able to recognize themselves in the programs broadcast across the country? How do we reconcile the Corporation’s statutory language obligations as a federal institution and national public broadcaster, with its mandate and the financial and operational choices it is called upon to make, when year after year – since at least 1973, while costs have increased everywhere – it sees its budget continue to melt away?

[28] If we set aside the revenue the Corporation can take in from television advertising, the quality of its radio and television programming depends largely on the yearly appropriations of funds by Parliament. This is because in practice, under the financial provisions of the BA, the Corporation has to submit its corporate plan, including capital and operating budgets, to the Minister of Canadian Heritage and Official Languages. In principle, this form of government paternalism should not diminish the autonomy enjoyed by the Corporation with regard to its programming. However, from a practical perspective, this fails to take into account the extraordinary power and influence conferred upon the government by its control over the Corporation’s finances. After all, it falls upon the Minister of Finance and even the President of the Treasury Board and Minister of Canadian Heritage and Official Languages, to justify before Parliament, any increase or reduction in appropriations to the Corporation. One may even wonder as to whether the proceeding commenced by the Commissioner has been directed at the party that is truly responsible for the loss of quality programming as a result of budget cuts that has been decried by several stakeholders during the CRTC hearings.

[29] As we are all aware, the logic of accounting is implacable. If cuts to programming budgets are required, it is those devoted to internal productions, where labour costs are high, that will be first to be cut, especially if cheaper alternatives can be found. In television, one can broadcast purchased programming, and on radio, one can always just broadcast the same network programs produced in the major production centres on all regional stations. Yet it has always been a point of pride for the Corporation that it was able to produce its own programs not only in the major production centres, but also in the regions where OLMCs live.

[30] Since it was created in 1936, modelled on the BBC [British Broadcasting Corporation], the Corporation has become a national symbol and standard bearer for Canada’s linguistic duality and equality of status of both languages throughout the country. In May 2013, the CRTC, when renewing the Corporation’s licences, used the opportunity to note that the national public broadcaster: “… plays an important role in the lives of Canadians [and] [a]s a national public broadcaster, the CBC should be a pan-Canadian service that reflects and serves the needs of all Canadians in both official languages regardless of where they live” (para 15). In its April 2014 report, the Senate Committee emphasized that “[w]itnesses were unanimous in recognizing that CBC/Radio-Canada plays a key role in enhancing the vitality of (OLMCs)” (page 19). In addition, in its 2009 Report to the Governor in Council on English- and French-language broadcasting services in English and French linguistic minority communities in Canada, the CRTC concluded that “it is important that the CBC have the means to continue serving these communities” and encouraged the Canadian government “to consider solutions that would enable it to provide the best possible service to official-language minority communities”.

[31] In the Office of the Commissioner of Official Languages 2010-2011Report on Plans and Priorities, Commissioner Graham Fraser stated that “[a]s an officer of Parliament, I provide parliamentarians with unbiased advice based on objective and factual information to help them fulfill one of their important roles—that of holding the federal government accountable for its stewardship of the equal status of English and French in Canada”, while reaffirming that “the Office of the Commissioner of Official Languages must maintain its independence to be able to provide unbiased advice and information to Parliament”. The composite aspect of broadcasting activities should not cause us to lose sight of the national public broadcaster’s raison d’être and its indissociable linguistic component. The national public broadcaster’s language obligations, in particular with respect to OLMCs, constitute a fundamental issue for Canada and for the survival of the federation. The Commissioner may rightly pose the question: Do the lack of appropriations from Parliament and budget cuts prevent the Corporation from fully carrying out its original mandate and fulfilling its statutory language obligations?

[32] In keeping with the line of reasoning used in my interlocutory decision, I reject any assertion by the respondent to the effect that the regulator of broadcasting undertakings exercises exclusive control over the content of programming produced or broadcast by the national public broadcaster. That is to confuse the medium with the message. What we have, organically speaking, is the same factual object whose essence remains unalterable. Because, whether it is radio or television programming, we are still referring to a service that is linguistic in nature. The listener or viewer can only decipher what he or she hears on the radio, or hears and sees on television, if the broadcasting service (the medium) is provided to them in a language they themselves can speak or understand. But there is more. Language has a strong identity aspect to it, which is intimately connected to the place in which it is spoken – country, province, region, city or village – as much as vocabulary, the way we express ourselves, our various accents are infinitely variable from one place to another, a language may find itself in competition with another language. Such is the case with Canada’s two official languages: French competes with English (in Quebec) and English competes with French (in the other provinces). The Corporation maintains that it complies with the LLO in its off-air communications with the public, but it claims to be exempt from the obligations of the OLA, in particular those under Part VII, in its broadcasting services. I firmly believe that this obstinate quest to create, at all costs, a scission between “broadcaster” and “institution” is misguided and wrong from the point of view of enforcing a constitutional, quasi-constitutional or statutory linguistic obligation. This is especially true when the language programming service is broadcast nationally and regionally by a public institution which is funded in large part by all Canadian taxpayers and which is regarded as a paragon of political rectitude.
Obligation to take positive measures to support Anglophone and Francophone minorities

[33] In the final judgment that follows, the Court declares that the Corporation is subject to the OLA, in particular Part VII (sections 41 to 45). It has an obligation to take positive measures to enhance the vitality and support and assist the development of OLMCs under Part VII of the OLA, specifically 41, which imposes an obligation to act in a manner that does not hinder the development and vitality of Canada’s Anglophone and Francophone minorities.

[34] Respect for minorities is an unwritten constitutional principle: Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 79-82; Vriend v Alberta, [1998] 1 SCR 493 at para 176; Lalonde v Ontario (Commission de restructuration des services de santé), 56 OR (3d) 505 at paras 111-125 [Lalonde]. This explicit legal recognition by the Supreme Court of Canada goes far beyond any sort of apophatic discourse offering only a faint and glimmering hope to the country’s Anglophone and Francophone minorities. We are speaking here of an indispensable constitutional principle, itself the creator of positive obligations. And, as independent branches of government tasked with upholding the Constitution, the courts are in the best position to ensure that language obligations are respected. Moreover, so is the Federal Court, when a proceeding is commenced under Part X of the OLA.

[35] As the Supreme Court clearly stated in Reference re Secession of Quebec:

80 … We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. This principle is clearly reflected in the Charterprovisions for the protection of minority rights. See, e.g., leReference re Public Schools Act (Man.), art. 79(3), (4) and (7), [1993] 1 S.C.R. 839, and Mahe v. Alberta, [1990] 1 S.C.R. 342.

81 The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of theCharter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada’s record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without success. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution.

[36] In R v Beaulac, [1999] 1 RCS 768 at para 25 [Beaulac], the Supreme Court further states that “[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada”. More recently, the Supreme Court reaffirmed, in Reference re Senate Reform, 2014 SCC 32 at para 25, that “… constitutional interpretation must be informed by the foundational principles of the Constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law”. [Emphasis added.]

[37] In this regard, the Supreme Court highlighted the importance in our legal system of the OLA, which “is not an ordinary statute” (Beaulac at para 21). Part VII is entitled “Advancement of English and French”. The provisions in Part VII are therefore geared towards long-term objectives whose achievement is dependent on political will. It cannot be otherwise and, as long as these provisions are not repealed by Parliament, the government must respect the commitment set out at section 41 of the OLA. Because, in a singular manner, Part VII of the OLA expresses the will of Parliament to place the federal apparatus at the service of a larger societal project that will encompass and surpass it, namely, the advent of a Canada that fully recognizes the equality of English and French, and in which official language minorities flourish. Bringing such an ambitious project to fruition will require a comprehensive, coordinated and a necessarily polycentric approach, as explained below.

[38] Under subsection 41(1) of the OLA, “[t]he government of Canada is committed to enhancing the vitality of the English and French linguistic minorities in Canada and supporting and assisting their development; and fostering the full recognition and use of both English and French in Canadian society” (government’s commitment). In the French version, Parliament uses the verb “s’engage”. It is therefore through the government’s commitment that one must understand the correlative obligation placed on federal institutions subject to the OLA. This of course includes the Corporation, which is not above the law, and which has not convinced me in this case that there exists any conflict between the BA and the OLA.

[39] In its interlocutory decision, the Court emphasized that “Parliament adopted and, over time, has amended the broadcasting policy for Canada set out at subsection 3(1) of the BA. The elements of this policy have been chosen by Parliament with great care, following profound consideration and extensive consultation and then a public debate, both as regards the 1968 statute (SC 1967-68, c 25) and the new 1991statute” (para 57). For this reason,“[t]oday, the policy contains a set of political, social, economic and cultural objectives that reflect the linguistic duality and the multicultural and multiracial nature of Canadian society”(para 57). Thus, the Court observed that “[t]here is no conflict between the purposes of the OLA and those of the BA. In both statutes, the general will of Parliament is to foster the development and enhance the vitality of OLMCs, while leaving the choice of means in the hands of the federal institutions concerned and the broadcasters, including the national public broadcaster” (para 58).

[40] In any event, with regard to the Corporation’s specific linguistic obligations, the OLA takes precedence over the BA and any decision or order of the CRTC. To be even clearer, the obligation to take positive measures and not to hinder the development of linguistic minorities is not rescinded by the BA. According to the new subsection 41(2) of the OLA, added in 2005, “[e]very federal institution has the duty to ensure that positive measures are taken for the implementation of the commitments [duty of federal institutions]…while respecting the jurisdiction and powers of the provinces”. In the French iteration, the term “il incombe aux” is used to convey the same idea. This wording is more restrictive that that employed at subsection 41(1). According to the Federal Court of Appeal’s reasoning inForum des maires de la Péninsule acadienne v Canada (Canadian Food Inspection Agency),2004 FCA 263, [2004] 4 FCR 276 [Forum des maires], subsection 41(2) imposes a “legal obligation” on federal institutions, which is enforceable by the courts. This is also a positive legal duty of the Corporation as a “federal institution”.

[41] That said, the expression “positive measures” is not defined in the OLA. The choice of which positive measures would be best to carry out the government’s commitment is, in principle, left up to each institution, subject, of course, to applicable regulations and to any powers of supervision or coordination that the Minister of Canadian Heritage and Official Languages and the President of the Treasury Board may have over the matter. The cutbacks decreed by the Corporation in 2009 gave rise to a fierce debate among Canadians and Parliamentarians. And that was just the beginning; other, more significant cuts were announced by the Corporation when this proceeding was commenced in 2010. The debate about reductions to the Corporation’s budget and cuts to regional service extended beyond the hearing rooms. One would be quite correct to characterize the whole affair as “political”. Is it any surprise that, at about the same time, the Standing Senate Committee on Official Languages was studying the national public broadcaster’s linguistic obligations?

[42] Maintaining the equality of English and French, as well as the development of linguistic communities, are products of the will of a courageous Parliament which had the wherewithal, when it enacted the OLA and the amendments in 2005, to rise above partisan strategies or electoral consideration. There were howls of protest from the Commissioner when he saw the Corporation being stretched further by cuts to radio in the regions this federal institution was originally designed to serve. No one is above the law; it goes without saying that this includes any agent of the Crown. Moreover, the Senate Committee stated that it “wishes to remind the Corporation that it has obligations under Part VII of the Official Languages Act to enhance the vitality of official-language minority communities” (page 88). This is a categorical, non-negotiable imperative, and as such would thwart any initiative that was not reasonably justifiable and that would adversely affect an obligation or right under the OLA.

[43] At the risk of repeating myself, it is clear that the Corporation has positive obligations under Part VII of the OLA with regard to broadcasting and programming activities that arise, in particular, from the principle of respect for and protection of minority language rights. Although the respondent argues that the quasi-constitutional character of the OLA does not apply to Part VII, the protection of minorities is, in and of itself, and unwritten or quasi-constitutional principle that does not arise solely from the OLA. As the Supreme Court noted in Lavigne v Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773 [Lavigne], the OLA and the Privacy Act, RSC 1985, c P-21,“are closely linked to the values and rights set out in the Constitution, and this explains their quasi-constitutional status that this Court has recognized them as having” (para 25).

[44] According to the respondent, these obligations are embedded in the BA itself, and because Parliament conferred upon the CRTC the regulatory authority to monitor all aspects of the broadcasting systems, the CRTC must be recognized as having exclusive jurisdiction. Such reasoning is sophistry: the fact that the BA is compatible with the Constitution, the OLA and the constitutional principle of protecting minorities does not confer upon the CRTC exclusive jurisdiction with respect to the regulation of the Corporation’s linguistic obligations under the Act. As a result of the potential for jurisdictional overlapping arising from the OLA and the BA, the best way to reconcile linguistic issues with the Corporation’s broadcasting activities would be to adopt the concurrent jurisdiction model proposed in this Court’s interlocutory decision. Therefore, issues with respect to the protection of OLMCs must be able to be examined and determined independently of any regulatory mandate Parliament may have conferred upon a specialized body such as the CRTC.
Concurrent jurisdiction model

[45] In the final judgment that follows, the Court declares that the Commissioner has jurisdiction to investigate complaints filed against the Corporation under the OLA, specifically Part VII, and in particular with regard to the adverse impacts on the OLMC of Southwestern Ontario that potentially resulted from the Corporation’s decision in 2009 to proceed with substantial budget cuts aimed specifically at CBEF Windsor.

[46] The respondent is asking the Court to re-examine the issue of jurisdiction in light of the Morin case. It is apparent from the evidence that the Court already took that decision into account in its interlocutory decision. Specifically, it considered the nature of the dispute and the intent of Parliament, bearing in mind the following principle: “[d]epending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction or themselves be endowed with exclusive jurisdiction”(quoting Morin at para 11). With respect to the first step in Morin, I concur with the respondent that subsections 5(1) and 3(2) of the BA emphasize that the broadcasting system is “unique” and that Parliament conferred upon the CRTC the power to regulate and monitor all aspects of that system. But unlike the Quebec Charter, which was analyzed by the Supreme Court of Canada in Morin, the BA does not expressly exclude the jurisdiction of the Commissioner or the Federal Court under the OLA, nor that of other federal agencies whose jurisdiction may overlap with that of the CRTC.

[47] To wit, there are other instances in which the CRTC shares jurisdiction with that of another federal body. Thus, in cases where there has been a merger or change in control of a telecommunications and broadcasting undertaking, two bodies have jurisdiction under their respective statutes: the CRTC and the Competition Bureau [Bureau]. How to resolve potential conflicts? Well, in a 2001 Bulletin, “CRTC/Competition Bureau Interface”, this is explained as follows:

Under the Telecommunications Act, prior approval of telecommunications mergers is not required. However, the CRTC has a specific responsibility under theTelecommunications Act for ensuring compliance with foreign ownership and control rules and has broad regulatory authority over the Canadian telecommunications system, Under theCompetition Act, all mergers are subject to review and those which exceed prescribed economic thresholds must be formally prenotified to the Bureau.

Under the Broadcasting Act, prior approval of the Commission is required for changes of control or ownership of licensed undertakings. Whereas the Bureau’s examination of mergers relates exclusively to competitive effects, the Commission’s consideration involves a broader set of objectives under theAct. This may encompass consideration of competition issues in order to further the objectives of the Act. The Bureau’s concern in radio and television broadcast markets relates primarily to the impact on advertising markets and, with respect to broadcast distribution undertakings, to the choices and prices available to consumers. The Commission’s concerns include those of the Bureau except that its considerations of advertising markets relates to the broadcasters’ ability to fulfill the objectives of the Act.

[48] Thus, the Bureau described the two organizations as having “complementary roles”: there is parallel jurisdiction and any transaction must comply with the legislation administered by both organizations. Furthermore, the Court’s interlocutory decision also identified a number of other instances where the Federal Court and other federal tribunals dealt with issues and ordered remedies with respect to broadcasting. For example, the Court referred to Vlug v Canadian Broadcasting Corp., in which the Canadian Human Rights Tribunal stated that the CBC infringed the rights of a man who is deaf in the application of the Canadian Human Rights Act and ordered the CBC’s English language network and Newsworld to caption all of their television programming (2000 CanLII 5591 (CHRT) at para 152, 38 CHRR 404, discussed by the Court in its interlocutory decision, para 46).

[49] The Court also mentioned Quigley v Canada (House of Commons), [2003] 1 FC 132, 2002 FCT 645, decided under Part X of the OLA, where the applicant was a subscriber to Rogers Cable in New Brunswick and filed a complaint with the Commissioner that the Cable Public Affairs Channel was broadcasting the House of Commons debates in their original version only. The applicant spoke only English, so he could not understand the parts spoken in French. In that case, the Attorney General of Canada contended that the implementation of any order should be left to the CRTC which is a specialized and independent agency and is best positioned to consider complex technological, economic and cultural policy issues. However, the Federal Court stated that the method used by the House of Commons and its Board of Internal Economy for providing television broadcasts of parliamentary proceedings contravened section 25 of the OLA and ordered them to take the necessary steps to comply with that provision.

[50] Regarding the second step in Morin, the nature of the dispute in this case – considered in its factual context and viewed in its essential character and not formalistically – indicates that the CRTC does not have exclusive jurisdiction (Morin at para 20). The main area of contention in the dispute is the fact that the Corporation changed the programming affecting OLMCs and is the decision-making process used by the CBC in response to the budget cuts. In Quebec (Attorney General) v Quebec (Human Rights Tribunal), [2004] 2 SCR 223, 2004 SCC 40, Chief Justice McLachlin, dissenting in the result, stated that“[w]here legislation confers exclusive jurisdiction, one must go on to determine its scope. ‘Exclusive over what?’ remains the question” (para 11). In this case, the subject of the CRTC’s exclusivity does not involve the protection of linguistic rights. That expertise and the role of guardian is vested in the Commissioner. Even though the respondent identified the means by which the CRTC takes official language obligations into account, the primary function of the CRTC is not to interpret quasi-constitutional rights, including the protection of minorities.

[51] Instead, Parliament created another authority with jurisdiction to investigate complaints made with respect to the actions of federal institutions that fail to comply with their obligations pursuant to the OLA. The Supreme Court noted the following in Lavigne at para 35:

. . . the Commissioner of Official Languages plays an important role. It is his job to take the measures that are necessary in respect of the recognition of each of the two official languages, and to secure compliance with the spirit of the Official Languages Act, in particular in the administration of the affairs of federal institutions. It is therefore the Commissioner who has been given the mandate to ensure that the objectives of that Act are implemented. To allow him to fulfil a social mission of such broad scope, he has been vested with broad powers by the Parliament of Canada. For instance, he may conduct investigations into complaints that in any particular case the status of an official language was not recognized, or any provision of an Act of Parliament or regulation relating to the status or use of the two official languages, or the spirit or intent of the Official Languages Act, was not complied with . . .

[52] The Commissioner’s power is mainly political. For example, the Federal Court of Appeal stated the following in Forum des maires at para 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), (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.

[53] In respect of language matters, the Commissioner is a necessary interlocutor, and it is on the basis of his investigations and robust interventions, when the obligations or principles of the OLA are disregarded by the government or a federal institution, that there is meaningful “dialogue”. The pre-eminence of the executive branch, including any Department or Crown Corporation, does not prevent the Commissioner, as an officer of Parliament, from asking any relevant questions. That is what Parliament and, consequently, Canadians, for whom the Commissioner speaks, want. The Commissioner’s roles as an ombudsman, auditor, watchdog and reporter enable him to provide Parliament with the necessary information to promote maintaining and enhancing OLMCs in Canada. For the benefit of Canadians, the Commissioner acts as a guide for Parliament and the executive branch, ensuring that they keep their promises and political commitments regarding the two official languages and the protection of the rights of linguistic minorities.

[54] Under sections 61 and 62 of the OLA, the Commissioner has been given wide-ranging investigative powers. It appears that the respondent refused to cooperate with the investigation validly conducted under the provisions of the OLA following the 2009 budget cuts and refused to respond to the Commissioner’s legitimate questions regarding the decision-making process and the impact of the decision on OLMCs. I stated the following earlier: the Constitution, the OLA and the constitutional principle of the protection of minorities do not tolerate an officer of Her Majesty claiming any immunity. The Commissioner’s independence from the executive branch is necessary to ensure that federal institutions respect their obligations vis-à-vis minorities.

[55] The CRTC has not taken over for the Commissioner in terms of overseeing the language obligations of the national public broadcaster. The CRTC’s authority over it relates exclusively to its broadcasting activities. And there is a certain logic in that vision of complementary mandates. Given that the Commissioner is an officer of Parliament, who reports his activities directly to Parliament, he is independent from the government. As noted by the Supreme Court in Lavigne, and as also cited by the Federal Court of Appeal in Forum des maires, “[i]n many significant respects, the mandates of the Commissioner . . . are in the same nature of an ombudsman’s role”, including the fact that the Commissioner is independent of government’s administrative institutions, that he examines complaints made by individuals against the government’s administrative institutions and conducts impartial investigations and attempts to improve the level of compliance by government institutions with the laws (Lavigne at para 37 and Forum des maires at para 21). The CRTC does not enjoy the same independence as the Commissioner. For example, the Governor in Council may, by order, issue to the CRTC directions of general application (sections 7 and 8 of the BA). Where the CRTC makes a decision to issue, amend or renew a licence, the Governor in Council may, even on the Governor in Council’s own motion, set aside the decision or refer the decision for reconsideration if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1) (section 28 of the BA).

[56] Simply put, in reiterating the principles stated by the Supreme Court in the present case, the existence of a specific regulatory framework under the BA is not sufficient to prevent the enforcement of the OLA, or the general control exercised by the Commissioner and the Federal Court over compliance with language obligations under the OLA or the Constitution. This raises the following question: what is the Federal Court doing and what can it do in this political discourse?
Justiciability of the political issues and particularities of the proceedings before the Federal Court

[57] As a general rule, an issue is non-justiciable if it involves “moral and political considerations which it is not within the province of the courts to assess” (Operation Dismantle Inc v The Queen, [1985] 1 SCR 441 at page 465 [Operation Dismantle]). In short, the issue is whether the question before a tribunal “is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch” (Reference Re Canada Assistance Plan (BC), [1991] 2 SCR 525 at para 26; Canada (Auditor General) v Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR 49).

[58] The doctrine of justiciability was extended in administrative law to quasi-statutory acts emanating from the executive branch itself, be it regulations or even government policies or programs. Because those actions result mainly from delegated powers, the intervention of the courts is warranted when the government oversteps its delegated authority: “[i]f that body has failed to observe a condition precedent to the exercise of that power, the court can declare that such purported exercise is a nullity” (Attorney General of Canada v Inuit Tapirisat of Canada, [1980] 2 SCR 735 at page 748). However, the courts are not required to comment on the lawfulness of a purely political decision or a quasi-statutory act. This is especially true in the case of a Crown Corporation’s decision to make budget cuts. At least in principle. Are there any exceptions?

[59] The first exception that comes to mind is when the Charter is invoked. The following was reiterated by Madam Justice Deschamps in Chaoulli v Quebec (Attorney General), [2005] 1 SCR 791 at para 89 [Chaoulli]: “The courts have a duty to rise above political debate. They leave it to the legislatures to develop social policy. But when such social policies infringe rights that are protected by the charters, the courts cannot shy away from considering them. The judicial branch plays a role that is not played by the legislative branch.” Furthermore, Chief Justice McLachlin and Justice Major noted the following in the same decision at paragraph 107: “The fact that the matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it.”

[60] Waiting in the wings, the courts are always there to intervene when political decisions lead to the denial of constitutional or quasi-constitutional rights. The decision inLalonde is highly relevant. In that decision, the Court of Appeal for Ontario unanimously upheld the trial judge’s decision to set aside the directions by the Health Services Restructuring Commission ordering the Montfort Hospital in Ottawa, the only hospital in Ontario in which the working language is French and where services in French are available at all times, to reduce its health care services.

[61] In Lalonde, the Court noted that the appeal “ . . . calls for careful consideration of the appropriate weight, value and effect to be accorded to the respect for and protection of minorities as one of the fundamental principles of our Constitution.” (para 115). It stated the following, in particular:

112 The protection of linguistic minorities is essential to our country. Dickson J. captured the spirit of the place of language rights in the Constitution in Société des Acadiens, supra, at p. 564 S.C.R.: “Linguistics duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history.” As stated by La Forest J. in R. v. Mercure, [1988] 1 S.C.R. 234 at 269, “rights regarding the English and French languages…are basic to the continued viability of the nation.”

113 As we have already mentioned, the Charter enhanced language rights. The entrenched guarantee of equality in s. 15 and the provisions requiring the respect and protection of aboriginal rights enhanced the protection of the rights of other minorities and the right to be free from discrimination. As the Supreme Court of Canada explained in the Secession Reference at p. 269, “There are linguistic and cultural minorities, including aboriginal peoples, unevenly distributed across the country who look to the Constitution of Canada for the protection of their rights.”

114 The principle of respect for and protection of minorities is a fundamental structural feature of the Canadian Constitution that both explains and transcends the minority rights that are specifically guaranteed in the constitutional text. This is an area where, as the Supreme Court of Canada explained in theSecession Reference at p. 292, “[a] superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.” This structural feature of the Constitution is reflected not only in the specific guarantees in favour of minorities. It infuses the entire text and, as we have explained, plays a vital role in shaping the content and contours of the Constitution’s other structural features: federalism, constitutionalism and the rule of law, and democracy.

[62] The Montfort Hospital judgment, while reaffirming the supervisory power of the superior courts with respect to the lawfulness of decisions made by public bodies, makes the positive obligation to reconcile any specialized statutory mandate with the protection of minority language rights essential. Clearly, “[t]he unwritten principles of the Constitution do have normative force” and “ . . . the principle of respect for and protection of minority language rights is a useful tool not only in interpreting the [French Languages Services Act] but in assessing the validity of the Commission’s directions in light of that legislation. Government action as well as government legislation is to be considered in light of constitutional principles, including the unwritten constitutional principles.” (Paras 116 and 130) Therefore, in Lalonde, the principle of respect for and protection of minority language rights was translated into a positive obligation to reconcile the Health Services Restructuring Commission’s mandate with the obligations imposed by the French Languages Services Act, including to demonstrate that the removal of medical services that are provided in French is “reasonable and necessary”.

[63] Another exception to the non-justiciability of political issues is when Parliament itself demonstrated intent for certain actions by the government or a federal institution to be examined by an independent third party. Consider the administrative review of a political decision giving the green light to an environmental project. Moreover, the courts were able to add constraints, with respect to consultation, that do not exist in the legislation. That is the case with certain projects affecting the First Nations. The same is true for an evaluation by an independent body –the Commissioner – of positive measures by a federal institution in a language matter; it is an independent evaluation specifically intended by Parliament, which adopted the OLA. We would like to make it clear here: the Corporation’s decisions are not reviewable under section 18 of the FCA. However, with respect to a right or obligation set out in the OLA (including Part VII), nothing prevents its lawfulness (or legitimacy) from otherwise being examined by the Commissioner under section 56 of the OLA, and, if need be, by the Federal Court under section 77 of the OLA.

[64] That said, the nature of the proceeding set out in Part X of the OLA is unique. As reiterated by Justice Décary of the Federal Court of Appeal in Forum des maires, to ensure that the OLA “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 (the Court) that the Commissioner himself (section 78) or the complainant (section 77) may use. That is the legislative foundation that legitimizes the intervention of the Federal Court in an area where administrative discretion and political action prevail.

[65] Nonetheless, the language in subsection 77(1) is clear and explicit: only those complaints in respect of “a right or duty under” the sections or parts of the OLA that are specifically stated in that provision could be the subject matter of the remedy before the court. In Forum des maires at para 25, it is noted that the list in subsection 77(1) is“completely compatible with Parliament’s intention, clearly expressed elsewhere in the Act, to ensure that not every section or every part of the Act should enjoy the same status or the same protection in the courts.” Moreover, Justice Décary reiterated the following in Forum des maires at paragraph 27: “This asymmetry of the Act is easily explained when we note that it deals not only with policies and commitments but also with rights and duties.” He also specified the following later on in that same paragraph: “So Parliament has spoken with great care, so as to ensure that only those disputes in respect of particular rights or duties may be taken before the Court. This prudence is especially warranted in that the remedial authority conferred by subsection 77(4) is exceptional in scope and it is readily understandable that Parliament did not intend to give the courts the power to interfere in the area of policies and commitments that is not usually within their jurisdiction.”

[66] The justiciability of certain political issues is therefore an evil integrated into the defence of democracy, and even the protection of the rights of linguistic minorities. The Federal Court exercises statutory jurisdiction in this area. However, it does not necessarily do so on the front lines because the Commissioner is the one who receives and investigates complaints made pursuant to the OLA. While the CRTC is the preferred forum for broadcasting issues under the BA, the Commissioner is the preferred forum for all issues relating to the application of the OLA.

[67] All automatism must also be rejected in the exercise of the Federal Court’s jurisdiction. A remedy under Part X is not an ordinary action. Public interest is at issue. The Commissioner has already investigated. Also, it should not be thought that the remedy set out in Part X of the OLA, which was expanded in 2005 to include Part VII, allows the court dealing with a complaint made validly under section 77 or section 78 to once again enter into the political arena in any way and to assume political power by dictating to the government and federal institutions which programs to establish under section 41 of the OLA. It is the sole responsibility of the judicial branch to circumscribe its jurisdiction in a manner that is compatible with the spirit and purpose of the law. Does that leave room for some judicial discretion to stay its proceedings or to refuse to exercise its jurisdiction when it believes that another organization is better placed to resolve the issue?

[68] I believe so. A court of justice always has discretion to control its proceedings. It all depends on the particular facts of each case. A fair distance seems appropriate here for the following reasons.
Application of the doctrine of forum conveniens and stay of proceedings

[69] In the interlocutory decision of May 2012, the Court favoured the “concurrent jurisdiction model”. In such situations, by analogy, the doctrine of forum (non) conveniensmay be useful for preventing the risk of conflicting decisions. Excessive court proceedings regarding the remedy set out in Part X of the OLA can only reinforce the impression of degeneration that may be left from non compliance with the division of powers principle. That explains the extreme prudence of the Court, in May 2012, in deciding to stay the proceedings so that the process to renew the Corporation’s broadcasting licences could be fully exercised.

[70] While the OLA constitutes a law of general application, the BA specifically targets the broadcasting industry because of its cultural, social and economic importance. More specifically, section 3 of the BA, which is entitled “Broadcasting Policy for Canada”, lists the general principles and the cultural, social and economic objectives in respect of broadcasting. It is not necessary, for the moment, to discuss this further. Note only that Parliament sees in the Canadian broadcasting system, comprising public, private and community elements, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty (paragraph 3(1)(b) and subparagraph 3(1)(d)(i) BA). Also, Parliament considers that “the objectives of the broadcasting policy set out in subsection (1) can best be achieved by providing for the regulation and supervision of the Canadian broadcasting system by a single independent public authority” (subsection 3(2) BA), in this case, the CRTC. In that respect, the CRTC “shall regulate and supervise all aspects of the Canadian broadcasting system”, “[s]ubject to [the BA] and theRadiocommunication Act and to any directions to the Commission issued by the Governor in Council” (subsection 5(1) BA).

[71] The issuance of a broadcasting licence has always been considered the exercise of a quasi‑statutory, if not executive, power of the government, a power delegated here to a regulatory agency. The CRTC’s primary function is eminently “political” and it is certainly in a better position than the Federal Court to assess the quality of the means by which the national public broadcaster carries out its mandate. Incidentally, the CRTC may be called upon to decide questions of law, and even though the BA is a complete code, the CRTC has the duty to consider the application of the Constitution, the OLA and the constitutional principle of the protection of linguistic minorities. In the 2013 CRTC decision, there is no direct reference to the Charter, the OLA or the principle of the protection of linguistic minorities. That suggests to the Commissioner that the Federal Court should lift the provisional stay ordered in May 2012. The issue will be discussed further later.

[72] As previously noted, I see no existing conflict between the BA and the OLA. It does not preclude, from a legal and political point of view, the CRTC from considering, in practice, the objectives of section 41 of the OLA when it renders a decision that could impact an OLMC. In particular, on March 30, 2009, the CRTC published the Report to the Governor in Council on English- and French-language broadcasting services in English and French linguistic minority communities in Canada, and stated the following:

. . . several parties emphasized the need to apply the Official Languages Act when considering applications to operate radio stations. For example, the Commissioner of Official Languages recommended that the Commission assess the impact of its decisions on official-language minority communities prior to making a decision. In this respect, it is Commission practice to integrate the objectives of section 41 of the Official Languages Act in the carrying out of its activities. It takes into account its obligations under this section by ensuring that it considers the needs of official-language minority communities when holding hearings, developing policies and making decisions, as well as the other factors it must consider. [Emphasis added]

[73] Namely, the report in question states the following:

The Commission agrees with the proposal by the Commissioner of Official Languages that it adopt an analysis of the impact of its decision on [OLMCs] as part of its decision making process. The Commission intends to systematize its practice to demonstrate that it is fulfilling its obligations and that it has considered all factors in its decisions.

[74] The intention expressed by the CRTC to integrate the objectives of section 41 of the OLA in the carrying out the activities of the public broadcaster is extremely laudable. Certainly, the CRTC is the forum favoured by Parliament to resolve broadcasting issues, but making the CRTC the exclusive arbitrator on the issue of respect for the rights of OLMCs is a step that I am not ready to take today, and neither is the Commissioner, who is well aware of the complexity of the language issues and who intends to ensure that the Corporation will cooperate in his investigations in the future. And, one must be careful not to trivialize the importance of the Corporation’s language obligations and the debate on that issue, which shifted to the CRTC since the Court’s interlocutory decision.

[75] The expertise enjoyed by the Commissioner in this regard is very important. Furthermore, in parallel to the proceeding before the Federal Court, nothing prevented the Commissioner, as an agency that specializes in language issues, from denouncing the 2009 cuts and informing the CRTC of his opposition to the Corporation’s renewal applications if he believed that the language obligations, the spirit and objectives of the OLA, the protection of minorities principle, the government’s commitment and the correlative obligation of section 41 of the OLA, and the legitimate expectations of the OLMCs were not sufficiently taken into account.

[76] In the final judgment that follows, the Court declares that even if it has jurisdiction in the strict sense under section 77 of the OLA, according to the concurrent jurisdiction model, to hear and rule on this proceeding brought in 2010, the CRTC is, pursuant to the BA, the preferred forum for discussing the impact of the budget cuts on programming, ruling on the issue of the decrease in regional or local programming broadcast by CBEF Windsor, forcing the resumed broadcasting of the programs cancelled by the Corporation, prescribing a minimum threshold for local or regional production hours and prescribing any other appropriate remedy in the circumstances, including imposing any consultation and reporting requirements with respect to decisions and measures that could affect OLMCs.
Is it appropriate to lift the stay and resume the proceedings in light of the recent developments since the interlocutory decision?

[77] Alternatively, the respondent is asking me to not allow the applicants to pursue the proceedings brought in 2010, given that the 2013 CRTC decision is determinative and determined the dispute, which is obviously contested by the applicants, who would like the stay ordered by the Court in May 2012 to be lifted.

[78] In its interlocutory decision, the Court temporarily stayed the proceedings in order to allow the CRTC to decide the issue of the decrease in regional or local programming broadcast by CBEF Windsor before determining whether it was appropriate to either dismiss the application or further examine the issues raised on the merits (para 52). Once the CRTC rendered its decision, the Court “could then determine whether the issue decided by the CRTC is essentially the same as the one raised in this application and whether the process followed by the CRTC (regardless of how closely it mirrors the procedure of the designated Court under section 76 of the OLA) gave the applicants the opportunity to present their case and make their arguments (Figliola, above, at paragraph 37)” (para 105).

[79] Therefore, according to the interlocutory decision, “[f]ull effect must be given to Parliament’s intent that the specific procedure in accordance with which the national public broadcaster provides its program offering, over the full network and in the regions, be substantively established by the CRTC as part of the public process to issue and renew the Corporation’s licences” (para 56). The process of renewing the Corporation’s licences is the forum favoured by Parliament for discussions to be held on the decrease in local or regional French-language programming (para 74). Furthermore, the Court noted that both parties may have a legitimate expectation to be heard and a legitimate expectation that the CRTC will conduct an analysis of the impact of those decisions on the OLMC of southwestern Ontario during the licence renewal process (para 95). However, the Court stated that “[i]t goes without saying that the expectations and conditions of licence set by the CRTC must be consistent with all of the applicable provisions of the BA and the OLA, which includes ensuring adherence to the values and spirit of the BA and the OLA in promoting the equal status of both official languages and supporting the development of OLMCs.” (para 56).

[80] Today, the applicants are seeking to have the Court exercise its discretion in a way that orders the recommencement of the proceedings that were stayed pending the outcome of the CRTC decision. In summary, they are claiming the following: (i) the CRTC did not appropriately dispose of the merits of the dispute; (ii) this proceeding is not moot following the CRTC’s decision; and (iii) the summary dismissal of an application under section 77 of the OLA is an exceptional and extraordinary measure. In this respect, the Commissioner argues that this proceeding does not constitute an institutional detour “to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route”: British Columbia (Workers’ Compensation Board) v Figliola, [2011] 3 SCR 422 at para 28, 2011 SCC 52 [Figliola].

[81] Regarding the purpose of the proceeding, the Commissioner is of the opinion that the CRTC considered the issue of CBEF Windsor’s local programming only in the context of the Corporation’s obligations under the BA. Similarly, the interests of the parties also differ. Before the CRTC, the complainants sought mainly that Windsor’s locally produced programs be reinstated, whereas the Commissioner is seeking here to have the Court clarify and enforce the respondent’s language obligations under Part VII of the OLA. Even though the 2013 CRTC decision resolved the issue of the number of local programming hours at CBEF Windsor, the CRTC’s decision did not resolve the issue of the application of Part VII of the OLA and its alleged breach in the case of the budget cut measures announced in 2009. In any event, the consultation and reporting requirements now imposed by the CRTC through the condition of licence are largely inadequate for the Corporation to fulfill its obligations under Part VII of the OLA. For example, subsection 41(1) of the OLA does not impose any obligation to consult OLMCs, but instead the duty to take positive measures to enhance the vitality of Canada’s English and French linguistic minority communities and assist their development. With respect to the issues, the CRTC ruled on the issues that arise under the BA, whereas the Court is called upon to review the issues under the OLA. Moreover, the Commissioner adopts the exclusive jurisdiction model in favour of the Commissioner, a model that was not upheld by the Court’s interlocutory decision. In short, the CRTC does not have jurisdiction to determine whether the Corporation complied with the OLA because that role lies exclusively with the Commissioner and, under section 77 of the OLA, with the Federal Court.

[82] Similarly, the applicants also argue that the proceeding is not moot. According toBorowski v Canada (Attorney General), [1989] 1 SCR 342 [Borowski], the Court must first determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. According to the applicants, the dispute between the parties persists despite the interlocutory decision by the Federal Court and the 2013 CRTC decision. However, even if the Court finds that the dispute is now moot, the Court should exercise its discretion to hear the case. According to the applicants, the three factors stated in Borowski are present: (i) an adversarial context, namely the scope of the CBC’s duties pursuant to Part VII of the OLA; (ii) the concern for judicial economy, given the resources already invested in the case; and (iii) the role of the Court in law making, specifically the Commissioner’s jurisdiction to investigate complaints in respect of the CBC.

[83] Finally, by analogy, the applicants maintain that under the Federal Courts Rules, SOR/98-106 [Rules], the summary dismissal of an action is an extraordinary measure and that it must be clear that it has no chance of success. Furthermore, the Federal Court of Appeal noted the following in Norton c Via Rail Canada Inc: “An application under section 77 of the OLA should not be struck unless there is no possibility that the Judge hearing the application will grant a remedy.” (2005 FCA 205 at para 15, [2005] FCJ No 978 [Norton]). Therefore, the applicants argue that only in cases where the Court decides that the CRTC’s jurisdiction is exclusive, which is not the case here, can the summary dismissal of an action be authorized.

[84] Alternatively, the respondent argues that if the Court finds that the Commissioner and the CRTC have concurrent jurisdiction, the Court should not resume the hearing because the preconditions to the operation of issue estoppel are met here. Looking at the first step inDanyluk v Ainsworth Technologies Inc, [2001] 2 SCR 460, 2001 SCC 44 [Danyluk], the respondent submits that: (i) the CRTC considered all of the issues raised by the Commissioner in his application; (ii) the CRTC rendered a final decision; and (iii) the same parties were before the CRTC concerning the issues in this case. Regarding the second step in applying the criterion stated in Danyluk, the respondent maintains that the Court should not exercise its discretion to refuse the application of estoppel, because there is no problem of unfairness under the circumstances. In fact, the hearing before the CRTC was fair, the parties had a reasonable opportunity to state their position and the issues were decided. According the respondent, the CRTC paid particular attention to the interests and specific situation of OLMCs. Indeed, in the 2013 decision, the CRTC imposed concrete measures that require consultations with OLMCs to determine the impact of the Corporation’s decisions on OLMCs and measures to mitigate the negative impact of the unfavourable decisions on OLMCs. Furthermore, the 2013 CRTC decision is final and was not challenged by the parties before the Federal Court of Appeal. Ordering the recommencement of the proceedings would be perverse and contrary to justice in the circumstances.

[85] In the final judgment that follows, the Court declares that, by reason of the 2013 CRTC decision, this proceeding is now largely moot. In light of the recent developments since the Court’s interlocutory decision, it is not in the interests of justice to lift the stay of proceedings that was provisionally ordered on May 29, 2012; the stay of proceedings will become permanent as of the date of this final judgment. As explained below, the applicants’ claims seem to me to be unfounded in this case.

[86] In Danyluk, the Supreme Court established a two-step analysis. First, the Court must determine whether the three requirements for estoppel stated by Justice Dickson in Angle v Minister of National Revenue, [1975] 2 SCR 248 are met: (i) that the same question has been decided; (ii) that the judicial decision which is said to create the estoppel was final; and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel was raised, or their privies. (Angle at 254, cited inDanyluk at para 25). If the answer to the first question is “yes”, the second step is that the Court must determine whether it should still exercise its discretion to hear the case.

[87] In Danyluk, the Supreme Court explained the following:

Dickson J. (later C.J.), speaking for the majority in Angle,supra, p. 255, subscribed to the more stringent definition for the purpose of issue estoppel. “It will not suffice” he said, “if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment.” The question out of which the estoppel is said to arise must have been “fundamental to the decision arrived at” in the earlier proceeding. In other words, as discussed below, the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings. (Para 24) [Emphasis added]

[88] Later, the Supreme Court noted the following:

Issue estoppel simply means that once a material fact . . . is found to exist (or not to exist) by a court or tribunal of competent jurisdiction, whether on the basis of evidence or admissions, the same issue cannot be relitigated in subsequent proceedings between the same parties. The estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that “issue” in the prior proceeding. (Para 54)

[89] In 2013, in Penner v Niagara (Regional Police Services Board), [2013] 2 SCR 125, 2013 SCC 19 [Penner], Justice Cromwell and Justice Karakatstanis, writing for the majority, stated that “[t]he legal framework governing the exercise of this discretion is set out in Danyluk” and that “this framework has not been overtaken by this Court’s subsequent jurisprudence” (para 31). In Danyluk and Penner, the Supreme Court reiterated seven factors“that are relevant to the discretionary analysis in the context of a prior administrative tribunal proceeding.” (Penner at para 37). Those factors are as follows: the wording of the statute from which the power to issue the administrative order derives; the purpose of the legislation; the availability of an appeal; the safeguards available to the parties in the administrative procedure; the expertise of the administrative decision maker; the circumstances giving rise to the prior administrative proceedings; and the potential injustice. However, the list is not exhaustive (Penner at para 38).

[90] In passing, in Penner, the Supreme Court specified that unfairness may arise in two different ways:

First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim. (Para 39)

In the second situation, the Supreme Court suggested that “ . . . where there is a significant difference between the purposes, processes or stakes involved in the two proceedings”, injustice may arise from using the results to preclude the subsequent proceedings (Penner at para 42).

[91] First, I believe that the preconditions for the application of the doctrine of issue estoppel are met in this case. Second, after considering the factors stated in Danulyk andPenner, it is not appropriate for the Court to still exercise its discretion to hear the case.

[92] In the 2013 decision, the CRTC took the risk of never explicitly referring to the language obligations set out in the OLA, while ensuring in practice that the objectives under section 41 of the OLA had been considered in the process to renew the licences of the national public broadcaster. For example, at paragraph 25 of its decision, the Commission noted that it had imposed a number of different conditions to ensure that the Corporation“strengthens its leadership as a pan-Canadian service that reflects and serves the needs of all Canadians in both official languages regardless of where they live”. The CRTC stated in its summary that it is “implementing the following measures to ensure that Canadians living in official language minority communities are well served.” (Summary of CRTC decision) Specifically, the Commission examined the level of local programming that the Corporation proposed for stations that operate as part of the Première Chaîne network and noted that “no station operating in an OLMC other than CBEF Windsor provides less than 15 hours of local programming each broadcast week.” (para 266). By acknowledging that “ten hours of local programming is not sufficient to properly serve the OLMC community in Southwestern Ontario”, the Commission required CBEF Windsor to provide a minimum of 15 hours of local programming each week for the French-language OLMCs in that area (decision, para 266 and Appendix 4, para 15; see also the summary of the decision).

[93] It is evident here that the CRTC considered the concerns of the Francophones served by CBEF Windsor and those of OLMCs in general in renewing the Corporation’s licences. Furthermore, it expressly reiterated what was stated by the SOS CBEF Windsor Committee and various interveners in that respect:

Complainants and interveners underlined the unique situation of Windsor, noting that CBEF is the only French-language station serving the city. At the hearing, SOS CBEF noted that CBEF had been in operation for 42 years and was important to the Windsor community. It was concerned that all of the cuts made by the CBC in Ontario were at the expense of CBEF. SOS CBEF also noted Windsor’s proximity to the U.S. and stated, [TRANSLATION] “We are bombarded by American media. Therefore, just keeping a Canadian culture is difficult, and keeping a Francophone culture in our region is even more difficult.” (Para 262)

[94] Moreover, by imposing conditions of licence, the CRTC stated that it considered the Corporation’s obligations in respect of official languages and OLMCs and took positive measures in that respect. For example, the CRTC found that the BA:

. . . enjoins the CBC to provide programming to Canadians that is of equivalent quality in English and in French, while reflecting the different needs and circumstances of each official language community. Thus, throughout this decision, the specificity of each official language community has resulted in the Commission taking an approach and imposing conditions of licence that respects this specificity. (Para 26 of the decision)

[95] Furthermore, the CRTC

. . . placed special emphasis on service to those living in different regions of the country, including OLMCs. Under the [BA], the CBC must reflect and serve Canada’s regions, as well as French and English OLMCs across the country. In its approach, the Commission has attempted to recognize the different needs and challenges of the English and French OLMCs. The Commission has set out specific measures related to OLMCs throughout this decision. (Para 27)

[96] The Commission also imposed two other relevant conditions of licence: first, the CRTC required, for the first time, the CBC to “hold a formal consultation at least once every two years with [OLMCs] located in each of the regions of Atlantic Canada, Ontario, Western Canada, the North and Quebec to discuss issues that affect their development and vitality.” (Appendix 2, para 1). Furthermore, it required that the CBC “report annually on consultations that took place that year and demonstrate how feedback from the consultations was taken into consideration in the Corporation’s decision making process.” (Appendix 2, para 1). The Commission noted that it is “ . . . essential for the CBC to consult representatives of OLMCs so that the programming of all of its services responds to the particular needs and circumstances of OLMCs, as set out in section 3(1)(m)(iv) of the Act.” (para 354). It noted that while the Corporation “ . . . made commitments in this regard for its French-language television, the Commission considers that consultations should be required by condition of licence for all CBC services.” (para 354).

[97] The Commission also made it a requirement that the Corporation provide an annual report “ . . . containing results of a French-language [OLMCs] audience perception survey on how well the Corporation’s French-language radio and television services are reflecting the OLMCs.” (Appendix 4, para 9). It also created an equivalent obligation with respect to English-language OLMCs (Appendix 4, para 10).

[98] Even if the CRTC did not formally determine, in its 2013 decision, whether the Corporation failed to, during the last licence period, respect any positive requirement in relation to carrying out consultations or analyzing the impact of its decision, it is clear that, in a prospective manner, by imposing, for the first time, on the Corporation a general requirement to hold consultations and report periodically to the OLMCs, and by prescribing a minimum number of local programming hours in French radio stations outside Quebec, the CRTC repudiated the budget cuts in the regions that were denounced by the interveners.

[99] In addition, the specific situation of the OLMC in southwestern Ontario was not ignored. The CRTC pointed out the following:

. . . the Commissioner of Official Languages, Graham Fraser, noted that according to an inquiry launched by his office, theCBC’s decision to reduce local programming in Windsor had a negative impact on the region’s already fragile Francophone community since the local programming offered by the station no longer met the needs of that community. Mr. Fraser also argued that the manner in which the CBC had reduced local programming in Windsor was contrary to the principles set out in the Act, which provide that CBC programming must be in English and in French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of English and French linguistic minorities. (Para 264)

[100] During public hearings before the CRTC, the Corporation wanted to make amends to the OLMCs when it returned in reply and improved its licence renewal proposal. At that time, the Corporation proposed to the CRTC that it increase CBEF Windsor’s local production to 10 hours per week and hold public meetings every two years in regions where there are minority groups during which it would present its initiatives and report the results obtained to OLMCs. This is a good example of a quasi-statutory process allowing any interested parties to argue their point of view in an evolving framework where positions are not fixed like they are before the courts. The CRTC’s solution to the dispute seems to me to be fair and consistent with the objectives of the OLA. In this case, this is a consideration that has a lot of weight in the decision that the Court is making today to not lift the stay to allow the applicants to continue with this proceeding under Part X of the OLA against the Corporation.

[101] Needless to say, the approach taken by the Court in its interlocutory decision in May 2012 is purely pragmatic. The power of the Court, in section 77 of the OLA, is essentially “remedial”. The Court is not here to be the primary investigator of any alleged failure of a federal institution to uphold its duty to take positive measures. Accusations with respect to the injurious effects of the Corporation’s 2009 budget cuts on OLMCs were already made in a timely manner by the Commissioner after an in-depth investigation. Today, the Commissioner would like the Federal Court to take this opportunity to examine, in an overall context, the scope of the Corporations’ language obligations towards OLMCs.

[102] In my humble opinion, this would be repeating what was already done before the CRTC. All of the parties had a reasonable opportunity to state their position. The CRTC made its decision at the end of a proceeding consisting of a public hearing held from November 19 to 30, 2012, and an online consultation in June and July 2011. The CRTC received more than 8,000 interventions during the public hearing, including the Commissioner as well as 13 groups and organizations that discussed the importance of the Corporation for OLMCs including the SOS CBEF Committee, a coalition of people from the Windsor area established to contest reductions in the CBEF’s local programming. See, for example, the interventions of the Committee: (July 8, 2011), CRTC’s Record, Volume 8, Tab F-43, pp 2502-507), (October 4 and 5, 2012), Volume 13, Tab F-153, pp 4282-293; Committee’s presentation: (November 27, 2012), Volume 19, Tab H-19 and the final written submissions: (December 11, 2012), Volume 23, Tab K-10. For the Commissioner’s presentation, see: (November 27, 2013), Volume 18, Tab H-11. The online consultation also yielded thousands of comments.

[103] The CRTC noted in the 2013 decision that it had received “interventions commenting on the CBC’s licence renewal applications and on specific CBC proposals. These interventions addressed a variety of subjects, including: . . . the need for CBCprogramming . . . to reflect all of Canada’s regions, as well as official language minority communities” (para 6). In its written submissions before the Court, the respondent identified 184 interventions addressing [translation] “the issue of linguistic duality, Francophone culture, OLMCs, the importance of the services of CBC/Radio-Canada for Anglophone and Francophone minority communities, equality between the services provided to Anglophones and Francophones or the visibility that CBC/Radio-Canada provides to OLMCs and their activities.” For example, Dr. Amellal and Nicole Larocque intervened in July 2011 and October 2012 on behalf of the SOS CBEF Committee and asked that the CRTC require the Corporation to reinstate the programs produced locally at CBEF, that is, 36.5 hours of locally produced programming per week, which existed in the framework of Decision CRTC 2001-529 (Intervention of the SOS CBEF Committee, Volume 8, Tab F-43 and Volume 13, Tab F-153). The issue of reinstating the local programming hours is definitely resolved today.

[104] The applicants agree that the other general remedies that they are still seeking from the Court are essentially systemic in nature. It is true that the Commissioner still would like to have an order issued that requires the Corporation to review its decision concerning CBEF Windsor in light of its obligations under section 41 of the OLA, but it is clear that the Corporation already agreed to increase the level of local programming at the CBEF Windsor station before the 2013 CRTC decision, and that since that decision, the Corporation has been required, by condition of licence, to produce at least fifteen hours of local programming. Regarding taking the necessary steps to address the negative impact of the 2009 cuts on OLMCs, the Commissioner would like the Court to order, in the future, the Corporation to put in place mechanisms that allow it to consult OLMCs that could be affected by a decision at the initial stage of the decision-making process. The consultation issue is at the heart of the decision of the CRTC, which, however, chose to not formally impose a prior consultation right. Still, the CRTC has already imposed a duty to consult and a periodic reporting requirement.

[105] Finally, the amended notice of application leaves it up to the Court to grant [translation] “any other remedy that the Court considers appropriate and just under the circumstances”. At the hearing in June 2014, counsel for Dr. Karim Amellal suggested that this could allow the Court to grant damages to all of the members in the OLMC of southwestern Ontario. Both the Court and the other counsel in this case were shocked by that very late suggestion. The current allegations in the proceedings before the Court certainly do not allow the applicant, Dr. Amellal, to claim damages. I agree with counsel for the respondent that the Court must exercise discretion to prevent an abuse of process. Be it compensatory or punitive damages, the Court never awards damages automatically. There must be serious grounds and evidence for doing so. Specific allegations on the violation of a particular obligation, the existence of a causal link and the nature and extent of the damages allegedly suffered by any applicant must be reflected in the proceedings. At this very advanced stage of the proceedings, the Court is not prepared to transform this proceeding into a class action and authorize Dr. Amellal to act as a representative for a group of persons that has not yet been defined.

[106] Counsel for the Commissioner asserts that he has a legitimate expectation to complete the examinations of the Corporation’s representatives. It is necessary to distinguish between what is essential and false pretence or triviality. Proceeding with the examinations of the Corporation’s representatives is not an end in itself. Regardless of the interlocutory decisions rendered by Prothonotary Tabib in 2001, the preferred route that must be followed by the Court in 2014 does not depend only on the relevance of the questions that the Commissioner would like to ask the Corporation’s representatives, but also on whether the ends of justice will be better served by ordering that the stay be lifted and allowing this proceeding to continue. Counsel for the Commissioner provided very few answers to the Court’s legitimate questions, other than to point out that memory has a way of fading and that the examinations of the Corporation’s representatives must take place as soon as possible because the relevant facts date back to 2009. It is apparent in the evidence that without a specific plan, or a legitimate objective, the proposed exercise does not serve any purpose today and must be stopped so as to not result in testimonial ramblings that will be of no genuine use today.

[107] I agree with the respondent that the 2013 CRTC decision is now definitive and determinative in this case; it was not the subject of an appeal or judicial review in the Federal Court of Appeal. Furthermore, the parties before this Court are the same as those in the hearings before the CRTC. It must be concluded that this proceeding is largely moot. Most of the issues were resolved by the CRTC, namely, the minimum number of local programming hours that CBEF Windsor must provide and the Corporation’s duty to consult and obligation to determine the impact of its decisions on OLMCs. By renewing the Corporation’s licences, the CRTC did not address the issues of jurisdiction and the subjection of the Corporation to the OLA, which were addressed in the Court’s interlocutory decision and which will now be the subject of a final judgment by this Court. Moreover, the CRTC took the trouble to note that “the Federal Court issued an interim decision denying the model of exclusive jurisdiction proposed by the CBC and ruled in favour of the concurrent jurisdiction of both the Federal Court and the Commission.” (Decision, at paras 259-260).

[108] In conclusion, the 2013 CRTC decision explicitly acknowledged that “Windsor had one of the highest assimilation rates of Francophones among French OLMCs in Canada.”(Para 263), It is therefore not surprising that the Senate Committee Report notes that “[t]he attention paid to official-language minority communities in this decision is important. It seems that most of what these communities said at the CRTC’s public hearings was heard.”(Page 16) The remaining issue is whether, in the future, the Corporation will comply with the letter and spirit of the commitments that it now says it made with respect to OLMCs.
Conclusion

[109] In the following judgment, the Court determines, with finality, the issues of jurisdiction and the application of the OLA and of the BA, while in the exercise of its discretion, the Court refuses to lift the stay of proceedings, which will become permanent on this date. Counsel agree that, regardless of the result, it is not appropriate to assign costs to either party.



JUDGMENT

THE COURT ORDERS AND ADJUDGES THE FOLLOWING:

1. The Canadian Broadcasting Corporation/Société Radio-Canada [Corporation] is subject to the Official Languages Act, RSC 1985, c 31 (4th Supp) [OLA], namely Part VII (sections 41 to 45). It has the obligation to take positive measures to enhance the vitality and assist the development of official language minority communities [OLMCs] under Part VII of the OLA, in particular section 41, which also imposes the obligation to not hinder the development and vitality of English and French minorities in Canada;

2. The Commissioner of Official Languages [Commissioner] has the jurisdiction to investigate complaints made against the Corporation under the OLA, namely Part VII and in particular, regarding the negative impacts on the OLMC of southwestern Ontario of the Corporation’s decision to make significant budget cuts in 2009, which affected, in particular, the CBEF 540 Windsor radio station [CBEF Windsor];

3. Even if the Federal Court has jurisdiction in the strict sense under section 77 of the OLA, according to the concurrent jurisdiction model, to hear and rule on the proceeding brought in 2010, the Canadian Radio-television and Telecommunications Commission [CRTC] is, pursuant to the Broadcasting Act, SC 1991, c 11 [BA], the preferred forum for discussing the impact of the budget cuts on programming, ruling on the issue of the decrease in regional or local programming broadcast by CBEF Windsor, forcing the resumed broadcasting of the programs cancelled by the Corporation, prescribing a minimum threshold for local or regional production hours, and prescribing any other appropriate remedy in the circumstances, including imposing any consultation and reporting requirements with respect to decisions and measures that could affect OLMCs;

4. Because of the decision dated May 28, 2013, renewing the Corporation’s licences to broadcast programming services for a five-year period, from September 1, 2013, to August 31, 2018, including CBEF Windsor and its transmitters: Broadcasting Decision CRTC 2013-263 and Broadcasting Orders CRTC 2013-264 and 2013-265 [2013 CRTC decision], this proceeding is now largely moot. In light of the recent developments since the Court’s interlocutory decision, it is not in the interests of justice to lift the stay of proceedings that was provisionally ordered on May 29, 2012; the stay of proceedings will become permanent on this date;

5. The Court otherwise dismisses the motion for summary dismissal of this proceeding brought by the respondent and the motion for the recommencement of the proceedings brought by the applicants;

6. Without costs.

“Luc Martineau”


Judge



FEDERAL COURT

SOLICITORS OF RECORD




DOCKET:

T-1288-10


STYLE OF CAUSE:

THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA AND DR KARIM AMELLAL v CBC/RADIO-CANADA




PLACE OF HEARING:

OTTAWA, Ontario




DATE OF HEARING:

JUNE 19 AND 20, 2014




REASONS FOR JUDGMENT AND JUDGMENT:

MARTINEAU J.




DATED:

SEPTEMBER 8, 2014





APPEARANCES:


Pascale Giguère

Kevin Shaar



FOR THE APPLICANT

THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA




Sean McGee

Marie-Pierre Pilon

FOR THE APPLICANT

DR KARIM AMELLAL




Guy J. Pratte

Nadia Effendi

FOR THE RESPONDENT




SOLICITORS OF RECORD:


Legal Affairs Branch

Office of the Commissioner of Official Languages of Canada

Ottawa, Ontario



FOR THE APPLICANT

THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA


Nelligan O’Brien Payne LLP

Ottawa, Ontario



FOR THE APPLICANT

DR KARIM AMELLAL




Borden Ladner Gervais LLP

Ottawa, Ontario

FOR THE RESPONDENT




Monday, September 22, 2014

Peter Gilgan donates $30 million to St. Michael’s new patient care tower.. Donation is single largest gift ever received by hospital and brings Gilgan’s lifetime philanthropic givings to $150 million



Donation is single largest gift ever received by hospital and brings Gilgan’s lifetime philanthropic givings to $150 million

Peter Gilgan, the founder and CEO of Mattamy Homes, today announced a $30 million gift toward construction of a new patient care tower for critically ill patients at St. Michael’s Hospital.

This is the single largest donation in St. Michael’s 122-year history.

It brings Gilgan’s lifetime charitable givings to $150 million. By donating to health and wellness, fitness and education causes in Canada and international aid to developing countries, he had already become part of a small group of Canadian philanthropists who have given more than $100 million.

St. Michael’s expects to break ground in January 2015 for the 17-storey Peter Gilgan Patient Care Tower at the northeast corner of Queen and Victoria Streets in downtown Toronto. Construction is expected to take three years, during which time the hospital will remain open.

“This generous donation by Peter Gilgan will transform patient care at St. Michael’s Hospital and help us achieve our goal of becoming the premier critical care hospital in Canada,” said Dr. Robert Howard, the hospital’s president and CEO.

St. Michael’s is already a Level 1 trauma centre, accredited to care for the most severely injured patients in the southern part of the Greater Toronto Area and South Central Ontario, as well as the most complicated trauma cases from throughout the province. But it is also the only hospital in Canada to make critical care a priority and a centrepiece of its strategic plan.

“I am so impressed with the quality, skill and professionalism of the doctors, nurses and health care workers at St. Mike’s who day in and day out do incredible work with quite frankly not the best facilities,” Gilgan said. “I am so pleased to do my part to contribute to an extraordinary new tower that will be purpose-built, state of the art and specifically designed so these amazing health teams can do even more to care for the most serious and critically ill patients.”

Critical care services focus on patients with time-sensitive conditions, often life-threatening and of sudden onset, delivered throughout the hospital, including intensive care units. Critical care requires a highly skilled and experienced team of health care providers as well as advanced technical equipment to save lives, control symptoms or provide palliative care, while bringing compassionate support to patients and families, often at end-of-life planning.

The new patient care tower has been specifically designed to care for critically ill patients—from those requiring emergency surgery to those being treated in the Coronary Care Unit, the orthopedics unit or the largest adult cystic fibrosis clinic in North America.

“With this new patient care tower, we will have the right space and the right equipment to provide the best care in Canada for critically ill patients,” Dr. Howard said. “This is a particularly ambitious goal when you consider that we are located in the heart of the biggest city in Canada and accept the sickest patients from throughout Canada’s biggest province. Our catchment area also includes a vulnerable inner city population with multiple health challenges.”

Highlights of the 250,000-square-foot tower include:
Five new purpose-built, state-of-the-art operating rooms designed to incorporate medical imaging equipment such as MRIs, CT scanners and X-rays
Having imaging equipment built into an OR allows surgeons do to more minimally invasive procedures, which are less traumatic to patients and require shorter hospital stays
Two new ICUs, a general ICU and one for coronary patients
All in-patient rooms in the new tower will be single rooms, providing more privacy for patients and better infection control. Every room will have natural light, which has been shown to promote overall health and reduce falls.
Every room will have dedicated comfortable space for families, to involve them in patient care, leading to better outcomes.

The Peter Gilgan Patient Care Tower is part of a larger hospital redevelopment, which includes renovations that will nearly double the size of the Emergency Department. The ED now sees close to 75,000 patients a year, about 1.5 times the number it was designed to handle. The new ED will also have a complete suite of imaging equipment fully staffed around the clock.

In the last few years, in addition to the St. Michael’s donation, Gilgan, a member of the Order of Canada, has donated $40 million to the Peter Gilgan Centre for Research and Learning at Sick Kids Hospital, $10 million to the New Oakville Hospital Foundation and $15 million to help Ryerson University build its athletic centre in the former Maple Leaf Gardens. An avid cyclist, he has also given $6 million toward the Mattamy National Cycling Centre in Milton, which will be used for the 2015 Toronto PanAm Games.

“Peter Gilgan is an incredibly successful builder of both homes and communities, a visionary in innovative design and an outstanding Canadian philanthropist,” said Alayne Metrick, president of St. Michael’s Hospital Foundation. “St. Michael’s is thrilled to be able to partner with someone who demonstrates those values to which we also aspire and someone who is giving back to society from his own resources in such a huge way.”

With Gilgan's gift, the Inspire 2018 fundraising campaign of St. Michael’s Hospital Foundation, co-chaired by John Tory, Tony Arrell, John Cassaday, Bill Downe and honorary co-chair Margaret McCain, has raised $168 million of its $200 million goal.
Support the INSPIRE 2018 campaign. Call 416-864-5000 or donate online.
About St. Michael's Hospital

St. Michael’s Hospital provides compassionate care to all who enter its doors. The hospital also provides outstanding medical education to future health care professionals in 27 academic disciplines. Critical care and trauma, heart disease, neurosurgery, diabetes, cancer care, care of the homeless and global health are among the hospital’s recognized areas of expertise. Through the Keenan Research Centre and the Li Ka Shing International Healthcare Education Centre, which make up the Li Ka Shing Knowledge Institute, research and education at St. Michael's Hospital are recognized and make an impact around the world. Founded in 1892, the hospital is fully affiliated with the University of Toronto.

Monday, September 15, 2014

The Transportation Safety Board of Canada (TSB) Aviation Investigation Report A12O0071 copy .



The Transportation Safety Board of Canada (TSB) investigated this occurrence for the purpose of advancing transportation safety. It is not the function of the Board to assign fault or determine civil or criminal liability.


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Loss of control and collision with water
Cochrane Air Service
de Havilland DHC-2 Mk.1, C-FGBF
Lillabelle Lake, Ontario
25 May 2012

Summary

The Cochrane Air Service de Havilland DHC-2 Mk.1 Beaver floatplane (registration C-FGBF, serial number 168) departed Edgar Lake, Ontario, with 2 passengers and 300 pounds of cargo on board. The aircraft was destined for the company’s main base located on Lillabelle Lake, Ontario, approximately 77 miles to the south. On arrival, a southwest-bound landing was attempted across the narrow width of the lake, as the winds favoured this direction. The pilot was unable to land the aircraft in the distance available and executed a go-around. At 1408, Eastern Daylight Time, shortly after full power application, the aircraft rolled quickly to the left and struck the water in a partially inverted attitude. The aircraft came to rest on the muddy lake bottom, partially suspended by the undamaged floats. The passenger in the front seat was able to exit the aircraft and was subsequently rescued. The pilot and rear-seat passenger were not able to exit and drowned. The emergency locator transmitter activated on impact.

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Factual information
History of the flight

The DHC-2 Mk.1 Beaver floatplane (C-FGBF) departed Lillabelle Lake, Ontario, at approximately 1105 Footnote1 for a flight to Nettogami Lake, Ontario, with 3 passengers and cargo on board. Following this flight, the aircraft flew empty to Edgar Lake, Ontario, approximately 9 nautical miles (nm) to the northeast, to pick up 2 passengers and cargo, and was then scheduled for a return flight to Lillabelle Lake. The aircraft departed Edgar Lake at approximately 1252 and, due to a strong head wind, took approximately 76 minutes to complete the 77 nm flight.

When the aircraft was approaching Lillabelle Lake, the pilot contacted company operations on the radio and was informed that the winds were very strong. The pilot was also informed that after landing, the aircraft should be taxied to the dock on the western shore, next to the company’s contracted maintenance facility. The pilot elected to make a southwest approach into the wind on the narrow northern portion of the lake, which ends near the maintenance dock.

This portion of the lake, if approached in a southwest direction, provides approximately 1800 feet for landing. The western shore on the windward side of the planned landing surface is upward sloping and lined with irregular bunches of large trees (Figure 1). As the aircraft approached this landing area, it encountered very gusty conditions. The aircraft entered the flare at a position appropriate for the landing surface available; however, due to wind gusts, the pilot was unable to get the aircraft to settle onto the water. Approximately halfway across the lake, the pilot decided to abort the landing and overshoot. Full power was applied, and the aircraft nose pitched up. In the first few seconds following power application, the aircraft rolled quickly to the left and struck the water in a partially inverted attitude, first with the left wing, then followed quickly by the cockpit and the right wing. The aircraft fuselage quickly submerged, and the aircraft came to a rest inverted, resting on the muddy bottom of the lake, partially suspended by the undamaged floats.

Company and maintenance personnel who witnessed the accident tried to get to the scene as quickly as possible, but were hindered by the wind and rough waters. The company’s rescue boat was initially submerged, and a few minutes went by before the boat departed the main dock. When the first persons to respond reached the aircraft, the seriously-injured front-seat passenger had egressed the aircraft and was resting on top of a float. The responders were able to open the left main door, but were unable to locate anyone else due to the gasoline-covered murky waters. The survivor was subsequently transported to hospital.



Weather

Although the ceiling was generally higher than 3000 feet above ground level (agl) and the visibility was greater than 6 statute miles (sm), the wind speed and gusts were increasing throughout the day, peaking shortly after the time of the accident.

There is no weather reporting station at Lillabelle Lake or at the nearby Cochrane Airport (CYCN). Therefore, pilots refer to the nearest 3 stations to get an estimate of the weather conditions and forecast.

Timmins (CYTS), located 36 nm to the south, Kapuskasing (CYYU), located 59 nm to the northwest, and Earlton (CYXR), located 99 nmto the southeast, were all reporting similar conditions at the time of departure and providing similar forecasts for the arrival. On average, winds were reported as, and were forecast to continue to be, 20 knots, gusting to 30 knots.

The Ontario Ministry of Natural Resources has several environmental monitoring stations in the area, which recorded weather conditions at the time of the occurrence. At 1250, sensors recorded wind speeds near Edgar Lake of 10 knots, gusting to 17 knots. Winds in Cochrane at 1100 were recorded as 8 knots, gusting to 23 knots, and increasing at 1400 to 17 knots, gusting to 34 knots.

The winds peaked in Cochrane at around 1700, when gusts as high as 46 knots were recorded.

Wind shear is defined as a sudden change of wind velocity and/or direction. While widespread, wind shear is normally associated with frontal surfaces, convective clouds, or microbursts. Localized wind shear can also occur near surface obstructions such as hills, trees, and large buildings. On gusty days, wind direction and velocity can change almost instantly due to obstacles on the windward side of the landing surface. Footnote2

In addition, surface obstructions can cause mechanical turbulence, also referred to as eddies. These eddies can spin in either the vertical or horizontal plane and vary considerably in size and intensity, depending on the speed of the wind.
Slow speed and stall characteristics

Aircraft flying at low airspeed, a high-power setting, and a high angle of attack encounter a significant left yawing and turning tendency due to the effects commonly refered to as torque, slipstream, and asymmetric thrust. Footnote3

The DHC-2 Beaver flight manual indicates a stall speed with landing flaps of 45 mph indicated airspeed (IAS). To meet performance specifications, the manual also suggests a final approach speed of 1.3 times the stall speed, or approximately 60 mph. Initial climb speed following an aborted landing is indicated as 65 mph.

The flight manual states that during a stall, “if yaw is permitted, the aircraft has a tendency to roll. Prompt corrective action must be initiated to prevent the roll from developing.” Footnote4
Pilot

The pilot held a commercial pilot licence with a seaplane endorsement and was certified and qualified for the flight in accordance with existing regulations. The pilot had approximately 1100 hours total flight time, with 700 hours on float aircraft and 300 hours on the de Havilland DHC-2 Beaver. This was the pilot’s second season with Cochrane Air Service (CAS) and his fourth season flying float aircraft commercially. At the beginning of May, the pilot received company recurrent training, which included training on take-offs, landings, rejected landings, and stalls. Since then, the pilot had completed approximately 30 hours of flying.

The pilot had not completed underwater egress training, nor is such training required by regulation.

The day of the accident was the fourth work day in a row following 2 days off duty. The pilot was considered well rested, and fatigue was not considered to be a factor.
Aircraft
General

C-FGBF was originally manufactured in 1952, and had since accumulated approximately 22 000 hours of air time. The aircraft was certified, maintained, and equipped in accordance with existing regulations. The aircraft was being operated within the weight and balance limitations set out in the pilot operating handbook.

The de Havilland DHC-2 Beaver aircraft type has undergone numerous modifications, and supplemental type certificates (STCs) have been issued over the years to improve or adapt the original design. These modifications are generally optional, unless mandated by an airworthiness directive.
Egress

In recent years, to address egress difficulties following accidents, Viking Air Limited (VAL), the current holder of the DHC-2 type certificate, has designed modifications to replace the original recessed rotary-style door handles with ones that are more accessible and easier to operate (service bulletin V2/0004). Viking has also designed pop-out windows for the rear passenger doors to replace the standard fixed ones (service bulletin V2/0003). These modifications were not mandated or completed on C-FGBF.
Stall warning

Aircraft design regulations Footnote5 require that aircraft certified in the normal, utility, aerobatic, and commuter category be equipped to provide the pilot with a clear and distinctive stall warning, with the flaps and landing gear in any normal position, in straight and in turning flight. The regulation also states:


… that this warning may be furnished either through the inherent aerodynamic qualities of the aeroplane or by a device that will give clearly distinguishable indications under expected conditions of flight. However, a visual stall warning device that requires the attention of the crew within the cockpit is not acceptable by itself. Footnote6

Flight tests completed during certification of the DHC-2 type in the 1940s determined that the aerodynamic buffeting near the stall was a clear and distinctive stall warning. As this was deemed to have met the design requirements, no further device or stall warning system Footnote7 was mandated to be installed.

In practice, very few aircraft types still in commercial operation today were type-certified without a stall warning system. The few types remaining in commercial operation were certified prior to 1960.

In more recent years, a VAL modification (STC# SA92-63) was made available to increase the gross weight of the DHC-2, and it included the installation of a stall warning system; however, this STC is not mandated nor was it completed on C-FGBF.

Since 1998, the Transportation Safety Board (TSB) has published 12 investigation reports on accidents involving aircraft that stalled and crashed and that were not equipped with a stall warning system. Ten of these reports involve a de Havilland DHC-2 (Appendix C).
Personal restraint system


The pilot and co-pilot seats of C-FGBF were solid metal, high-back, military-style seats (Photo 1), equipped with four-point seat belts. The lap belt portion was standard, and the shoulder harness was a detachable adjustable-length-style split Y (non-inertia reel). When this type of shoulder harness is tightened, it can become very difficult for the average person to easily reach essential cockpit controls.

Regulations require pilots to fasten their safety belts during flight. Footnote8 Safety belts are defined in the regulations as a personal restraint system consisting of either a lap strap or a lap strap combined with a shoulder harness.

The rear passenger seat belts were lap belts only. Regulations for newer-design aeroplanes in the normal, utility, or aerobatic category require the installation of rear passenger shoulder harnesses Footnote9 to prevent serious injury in the event of an accident. These requirements were not in effect at the time of design of C-FGBF.

In 2009, a limited STC was approved to incorporate rear shoulder harnesses on the DHC-2 Mk.3 aircraft type. However, there are currently no modifications or STCs to incorporate shoulder harnesses on the DHC-2 Mk.1.

The aircraft was not equipped with onboard recorders, nor was it required by regulation.
Wreckage

During the examination of the aircraft during and following the recovery, the following was determined:
The flaps were in the landing position.
The right cockpit and passenger doors were pushed in beyond their frames and were inoperable.
The windows of both front doors were broken out.
The cockpit windscreen was shattered, and the roof was caved in.
The left passenger door was undamaged and operable.
The pilot’s door was bent and partially jammed in the frame, and the opening mechanism was only operable with significant leverage (Photo 2).
The pilot’s shoulder harness was found tucked into a storage pouch after the accident.
The front-seat passenger’s shoulder harness was found hanging from its ceiling attachment point.




The examination determined that there were no pre-existing mechanical defects which would have prevented safe flight.
Survival aspects

The 2 passengers were frequent travelers with CAS and on float aircraft in general. During boarding at Edgar Lake, the pilot gave only an abbreviated safety briefing and did not ensure that the passengers were aware of the location of the life jackets, the operation of the door exits, or the usage of the shoulder harness where available. Safety cards, which described these items, were available, but were not pointed out or examined.

The pilot and front-seat passenger were only wearing the lap belt portion of their safety belts.

The front-seat passenger was unconscious for a short time after the impact. Upon regaining consciousness, this passenger was able to remove the lap belt and exit the aircraft using the small hole resulting from the missing right cockpit door window. During egress, the passenger did not have time to grab a life preserver and was not aware of its location had time been available.

After impact, after apparently removing the lap belt, the pilot attempted to locate an egress point, but was unable to do so.

Divers from the Ontario Provincial Police were able to access the cabin during recovery. They found the pilot unrestrained in the main cabin, and the rear-seat passenger still with a seat belt in the left rear-passenger seat. Post-mortem examination confirmed that both individuals had drowned; however the rear passenger also suffered a severe forehead injury.

The TSB has found that the risk of serious injury or death is increased for occupants of light aircraft who are not wearing upper-torso restraints. Footnote10 Crashworthiness studies conducted in the United States Footnote11 and Canada Footnote12 have consistently concluded that the probability of surviving impact forces is significantly greater if occupants of small, general aviation aircraft are protected by upper-torso restraints. In 2010, a study by the FAA examined 649 accidents between 2004 and 2009, 97 of which included fatal or serious injuries. The FAA determined that 40% of the deaths could have been prevented by enhanced crashworthiness, and nearly half of those might have been avoided with the use of shoulder harnesses, primarily in passenger seats.

The use of a three-point or four-point safety restraint (safety belt and shoulder harness) is known to reduce the severity of upper body and head injuries and more evenly distribute impact forces. Footnote13 Occupants of a seaplane may drown in a sinking aircraft if they are unconscious; loss of consciousness is normally caused by head trauma. If restrained and protected during the impact sequence, occupants may maintain consciousness and stand a better chance of successfully exiting a sinking aircraft.

The aircraft damage and impact forces during the accident were survivable, Footnote14 however 2 of the 3 occupants did not survive. According to past research into accidents where helicopters were submerged in water, typically only 10% to 15% of people are able to carry out the required egress actions effectively. Footnote15 Another 10% to 15% of people typically fail to act from extreme stress, greatly reducing their chance of survival. The remaining 75% may be stunned or shocked by the event; however, most are able to escape successfully if they are well trained and have rehearsed for such an event. Restrictions to normal exits, water temperature, darkness, and disorientation following water impact further reduce the ability to exit. Escape training and passenger briefings emphasize the importance of memorizing exit locations. Exits are clearly indicated in the passenger briefing cards; however, passengers may not regularly refer to these cards.

Seaplane travel is common in Canada, particularly in British Columbia. In the Vancouver Harbour alone, there are about 33 000 floatplane movements per year, carrying approximately 300 000 passengers.

The TSB has found that the risk of drowning for occupants involved in seaplane accidents is high. Footnote16 TSB and British Columbia Coroners Service data show that, over the last 20 years, about 70% of the fatalities resulting from accidents where aircraft crashed and were submerged in water were attributed to drowning. Half of the deceased were found in the submerged wreckage.

If an individual is successful in escaping an aircraft that has impacted water, continued survival is also a significant concern. TSBAviation Safety Study SA9401 suggests it is unlikely that persons faced with the urgency of escape in water will retrieve the life-vests stored in the aircraft. Without a life-vest, considerable amounts of energy are expended to remain above the surface. This physical effort can result in a loss of body heat, fatigue, and eventual drowning. Survival without a life-vest is further complicated by injuries.
Previous examination of floatplane and seaplane safety

Over the last 20 years, the TSB has produced safety studies and safety advisories (Appendix A), as well as numerous aircraft accident investigation reports (Appendix B), that highlight issues related to floatplane and seaplane safety.

As a result of these studies and investigations, the TSB has published several recommendations throughout the years regarding floatplane safety issues, including most recently:


Recommendation A11-05: The Department of Transport require that all new and existing commercial seaplanes be fitted with regular and emergency exits that allow rapid egress following a survivable collision with water.

Recommendation A11-06: The Department of Transport require that occupants of commercial seaplanes wear a device that provides personal flotation following emergency egress.

In 1992, after a floatplane accident in which all the occupants suffered head injuries, the TSB recommended that:


Recommendation A92-01: The Department of Transport expedite legislation to require the use of a seat-belt and shoulder harness during take-off and landing of small, commercial fixed-wing aircraft.

In 1994, in A Safety Study of Survivability in Seaplane Accidents (SA9401), the TSB was slightly more specific:


Recommendation A94-08: The Department of Transport require the fitment of lap belts and shoulder harnesses in seaplanes and require their use by all pilots during take-offs and landings before the 1995 seaplane season begins.

After recommendation A94-08 was issued, Transport Canada (TC) made the following additions to the Canadian Aviation Regulations(CARs):


CAR 703.69 – No person shall operate an aircraft unless the pilot seat and any seat beside the pilot seat are equipped with a safety belt that includes a shoulder harness.

CAR 605.24 (3) – No person shall operate a small aeroplane manufactured after December 12, 1986, the initial type certificate of which provides for not more than nine passenger seats, excluding any pilot seats, unless each forward- or aft-facing seat is equipped with a safety belt that includes a shoulder harness.

Upon completion of these regulatory changes, the TSB evaluated the response to recommendation A94-08 as fully satisfactory. However, for older aircraft, the regulation only addressed the cockpit seats and not the remaining passenger seats, contrary to what was intended by the recommendation.

In October 2011, the British Columbia Coroners Service convened an Aviation Death Review Panel to examine the facts and circumstances surrounding 4 floatplane/seaplane accidents on the West Coast. The formal report, published in March 2012, echoed TSBrecommendations A11-05 and A11-06 and added 17 recommendations, including the following 4, which are particularly relevant to this occurrence:


3) It is recommended that Transport Canada create a regulatory requirement that illumination strips identifying emergency exits be installed onboard all commercial seaplanes.

5) It is recommended that Transport Canada undertake a formal review of the efficacy of available stall warning systems, including angle of attack indicators, for applications in all certified aircraft, with the objective of identifying systems that would enhance pilot's awareness of the angle of attack and allow for early recognition of situations that may result in an aerodynamic stall if uncorrected.

9) It is recommended that Transport Canada develop a process for issuing of Operational Directives, similar to the existing Airworthiness Directives processes, to enable speedy and efficient dissemination of safety related information and directives addressing operational safety issues.

12) It is recommended that Transport Canada develop standardized curriculum for underwater egress training and make underwater egress training mandatory for flight crews involved in commercial seaplane operations; and further, that enhanced safety briefings outlining underwater egress procedures be mandatory on all commercial seaplane flights. Footnote17

TC has completed several floatplane safety reviews and studies throughout the years in an effort to address the continuing risk of accident and injury in the industry. In 2005, TC conducted a Floatplane Safety Review, which looked at several possible methods of mitigating the risks involved with underwater egress from submerged floatplanes. Among the suggested methods were increased training and briefing, required installation of shoulder harnesses, improvements to emergency exits, and a requirement to wear life preservers. In 2008, TC indicated that the results were inconclusive and did not release a public report or make any substantive changes to existing regulations. During the risk assessment portion of this safety review, TC evaluated the risk that “A passenger may become injured because there was no shoulder harness” Footnote18 was an acceptable risk.

More recently, in the summer of 2011, TC created a focus group to address the latest TSB recommendations and other floatplane safety issues. The focus group mostly agreed with recommendation A11-06, but indicated that the cost to implement recommendation A11-05 was too high and unsustainable for the industry. To mitigate the risk associated with egress raised in recommendation A11-05, the focus group proposed the following regulatory changes:
That TC require all commercial floatplane operators to placard each emergency exit location with luminescent markings to ease flight crew and passengers egress in cases the aircraft is submerged in water.
That TC introduce for consideration to foreign civil aviation authorities and ICAO a new harmonized regulation to address enhanced rapid egress for new type design aircraft used in floatplane operations.
That TC require all commercial floatplane operators to have initial underwater egress training for flight crews. This requirement should consider giving operators sufficient time to implement this training.
That TC require all commercial floatplane operators to have re-current Pilot Decision Making (PDM) required regardless of operations specifications.
That TC develop a formal floatplane type rating within its crew licensing regulations. Footnote19

These proposals were presented to TC during a Canadian Aviation Regulation Advisory Council (CARAC) meeting. After an in–depth review, TC senior management agreed with the proposals. TC indicated that a process is currently underway to initiate the drafting of appropriate regulations using an accelerated procedure, but it did not provide a timeframe for these actions.

In advance of changes to regulation, TC published a Civil Aviation Safety Alert (CASA No. 2011-03) titled “Voluntary Adoption of Floatplane Safety Best Industry Practices”. This CASA was intended to encourage floatplane operators to adopt the following 4 practices:

upper body restraints to be used by front seat passengers;
comprehensive safety briefing to passengers, including the proper usage of personal flotation devices during and after emergency egress;
emergency egress training for flight crew; and
the adoption of aircraft safety design improvements facilitating egress. Footnote20

Additionally, TC published a webpage available to the public and to seaplane operators to promote seaplane safety. Footnote21 It could not be determined what percentage of passengers view this webpage before flying aboard a seaplane.
Analysis

The investigation determined that the aircraft was maintained in accordance with existing rules and regulations, and that the company was operating within the rules and guidelines laid out in the Canadian Aviation Regulations (CARs) and the company operations manual. The analysis will therefore focus on the pilot, on the particular circumstances that led to the aircraft impacting the water, and on the underlying systemic safety issues within the floatplane industry.

The wind at the time of the occurrence was very strong and gusty. While these conditions were known to the pilot, changes in wind speed and direction, as well as the mechanical turbulence caused by the wind’s passage over obstacles on the windward side of the approach, would have made for challenging landing conditions.

There likely was an increase in headwind, which in turn increased the float time of the aircraft while in the landing flare. As the available landing distance was used up in this landing flare, the pilot decided to conduct a missed approach, applied power, and increased the aircraft angle of attack. It is possible that the pilot inadvertently allowed the aircraft speed to bleed off, or perhaps a change in the headwind component due to the gusty winds (wind shear) resulted in a sudden drop in airspeed below the stall speed. The rapid application of full power caused the aircraft to yaw to the left, and a left roll quickly developed. This movement, in combination with a high angle of attack and low airspeed, likely caused the aircraft to stall. The altitude available to regain control before striking the water was insufficient. The aircraft was not equipped with a stall warning system, which may have given the pilot additional warning of an impending stall.

The rear-seat passenger did not have an upper body restraint and suffered a serious head injury when the aircraft struck the water. This injury rendered the passenger unconscious, which resulted in drowning. This passenger was seated next to the only operational exit. Even though this door was operational, the physical obstacle of the unresponsive passenger may have made this exit unusable.

Due to the damage to the pilot’s door, significant torque on the handle was required to open it. As well, the original small recessed rotary interior door handles of this aircraft had not been replaced with ones that are more accessible and easier to operate. Either of these factors may have prevented the pilot from opening the door. The pilot survived the impact, but was unable to exit the aircraft, possibly due to difficulties finding or opening an alternate exit. The pilot subsequently drowned. Commercial seaplane pilots who do not receive underwater egress training are at increased risk of being unable to exit the aircraft following a survivable impact with water.

The pilot did not provide a full safety briefing to the passengers before takeoff, possibly because they were frequent travellers. However, the passengers were not aware of the location of the life preservers, and the front-seat passenger was not aware of the shoulder harnesses. The injuries received by the front passenger were likely aggravated by the fact that the available shoulder harness was not worn. Not wearing a shoulder harness can increase the risk of injury or death in an accident.
Findings
Findings as to causes and contributing factors
On the windward side of the landing surface, there was significant mechanical turbulence and associated wind shear caused by the passage of strong gusty winds over surface obstructions.
During the attempted overshoot, the rapid application of full power caused the aircraft to yaw to the left, and a left roll quickly developed. This movement, in combination with a high angle of attack and low airspeed, likely caused the aircraft to stall. The altitude available to regain control before striking the water was insufficient.
The pilot survived the impact, but was unable to exit the aircraft, possibly due to difficulties finding or opening an exit. The pilot subsequently drowned.
The rear-seat passenger did not have a shoulder harness and was critically injured. The passenger’s head struck the pilot’s seat in front; this passenger did not exit the aircraft and drowned.
Findings as to risk
Without a full passenger safety briefing, there is increased risk that passengers may not use the available safety equipment or be able to perform necessary emergency functions in a timely manner to avoid injury or death.
Not wearing a shoulder harness can increase the risk of injury or death in an accident.
Not having a stall warning system increases the risk that the pilot may not be aware of an impending aerodynamic stall.
Commercial seaplane pilots who do not receive underwater egress training are at increased risk of being unable to exit the aircraft following a survivable impact with water.
Safety action
Safety action taken
Cochrane Air Service

Following the occurrence, the company began providing a printed graphic area forecast to pilots each morning. All pilots are required to sign the printed weather report and verify that the conditions are suitable for the planned flight.
Safety Action required
Underwater egress training for commercial flightcrews

Seaplane travel is common in Canada, particularly in British Columbia. In the Vancouver Harbour alone, there are about 33 000 floatplane movements per year, carrying approximately 300 000 passengers.

The Transportation Safety Board (TSB) has found that the risk of drowning for occupants involved in seaplane accidents is high. TSBand British Columbia Coroners Service data show that, over the last 20 years, about 70% of the fatalities resulting from accidents where aircraft crashed and were submerged in water were attributed to drowning. Half of the deceased were found in the submerged wreckage. While it could not be determined in all cases, some investigations found that the occupants were conscious and able to move around the cabin before they drowned. These past occurrences validate the probability that able-bodied persons can be trapped in sinking aircraft and drown as a result.

This investigation concluded that the pilot survived the impact, but was unable to locate a suitable exit and drowned. Pilots who receive underwater egress training have a greater probability of escaping from the aircraft and a greater chance of surviving the accident.

Transport Canada (TC) has recognized the critical importance of underwater egress training. However, at this point, such training remains voluntary. TC indicated that a process is currently underway to initiate the drafting of new regulations requiring underwater egress training using an accelerated procedure, but it did not provide a timeframe for these actions.

The TSB is concerned that pilots who have not received training in underwater egress may not be able to exit the aircraft and subsequently help passengers to safety. Therefore, the Board recommends that:


The Department of Transport require underwater egress training for all flight crews engaged in commercial seaplane operations.

A13-02
Passenger shoulder harnesses

The TSB has found that the risk of serious injury or death is increased for occupants of light aircraft who are not wearing upper-torso restraints or shoulder harnesses. The results of previous safety studies completed by the TSB (SA 9401, TP 8655E) have been more recently supported by a Federal Aviation Administration (FAA) study into fatal and serious injury accidents in Alaska.

A significant portion of the commercial floatplane fleet in Canada was manufactured before shoulder harnesses were required for passenger seats, and remain in this configuration today.

In the event of a seaplane accident, the occupants of the aircraft may drown if they are unconscious; loss of consciousness is normally caused by head trauma. If restrained and protected during the impact sequence, occupants may maintain consciousness and stand a better chance of successfully exiting a sinking aircraft. The use of a three-point safety restraint (safety belt and shoulder harness) is known to reduce the severity of upper body and head injuries and more evenly distribute impact forces.

The TSB has previously recommended (A94-08, A92-01) that small commercial aircraft be fitted with seatbelts and shoulder harnesses in all seating positions. Following these recommendations, changes to regulations were made to require shoulder harnesses in all commercial cockpits and on all seats in aircraft with 9 or fewer passengers manufactured after 1986. Footnote22 This regulatory change did not address the vast majority of the commercial floatplane fleet, which was manufactured prior to 1986.

The TSB considers that, given the additional hazards associated with accidents on water, shoulder harnesses for all seaplane passengers will reduce the risk of incapacitating injury, thereby improving their ability to exit the aircraft. Therefore, the Board recommends that:


The Department of Transport require that all seaplanes in commercial service certificated for 9 or fewer passengers be fitted with seatbelts that include shoulder harnesses on all passenger seats.

A13-03
Safety concern
Stall warning systems for DHC-2 aircraft

Current regulations require that aircraft certified in the normal, utility, aerobatic, or commuter category be designed with a clear and distinctive stall warning. The stall warning may be furnished either through inherent aerodynamic qualities of the aeroplane or by a device that gives clearly distinguishable indications.

When the DHC-2 was certified, a stall warning system was not included as it was determined that the aircraft had a natural aerodynamic buffet at low airspeeds and high angles of attack, and that this was a clear and distinctive warning of an impending stall. Therefore, if a pilot does not recognize or misinterprets buffeting as turbulence while at a low airspeed or high angle of attack, there is a risk that the warning of impending stall will be unrecognized. A stall warning system providing visual, aural, or tactile warning can give pilots a clear and compelling warning of an impending stall.

A large number of DHC-2 aircraft continue to operate in Canada. The TSB has determined that the frequency and consequences of DHC-2 aircraft accidents following an aerodynamic stall are high (Appendix C).

Stalls encountered during critical phases of flight often have disasterous consequences. Therefore the Board is concerned that the aerodynamic buffet of DHC-2 aircraft alone may provide insufficient warning to pilots of an impending stall.

This report concludes the Transportation Safety Board’s investigation into this occurrence. Consequently, the Board authorized the release of this report on 19 September 2013. It was officially released on 23 October 2013.
Appendices
Appendix A – TSB Safety studies and safety communications related to floatplane and seaplane safety
A Safety Study of Piloting Skills, Abilities, and Knowledge in Seaplane Operations (TSB report number SSA93001): This 1993 study examined 1432 seaplane accidents. Although the study did not focus on survivability issues, it did compare the ratio of fatal accidents to total accidents for float-equipped aircraft to that of wheel-equipped aircraft (for those makes and models of aircraft most frequently float-equipped). When these aeroplanes were on wheels, 10% of the accidents were fatal. However, when they were on floats, 17% were fatal. In the study, 10 safety recommendations were made aimed at reducing the number of seaplane accidents.
A Safety Study Of Survivability in Seaplane Accidents (TSB report number SA9401): This 1994 TSB safety study analyzed seaplane accidents in Canada over the fifteen-year period from 1976 to 1990. During that time, there were 1432 such accidents, of which 234 resulted in 452 fatalities. The safety study contained 6 recommendations to enhance the survivability of persons involved in seaplane accidents, including a recommendation on wearing personal flotation devices during the standing, taxiing, takeoff, approach, and landing phases of flight (TSB Recommendation A94-07).
TSB Safety Advisory A000003-1, Escape from a Submerged Seaplane: The TSB issued this safety advisory following an accident in 2000 involving a de Havilland DHC-2 Beaver. Amongst other things, the safety advisory suggested that quick release mechanisms or push-out windows would enhance rapid egress. Transport Canada (TC) did not, however, implement requirements for these modifications to floatplanes.
TSB Safety Advisory A040044-1, Egress from Submerged Seaplanes:The TSB issued this safety advisory following a 2004 accident involving a Cessna A185F seaplane carrying 1 pilot and 3 passengers. In this occurrence, the pilot and the right front-seat passenger were unable to open either of the main exits and egressed through the broken window in the left cabin door. The 2 rear-seat passengers drowned, despite the fact that they had not sustained any physical injuries during the occurrence. The advisory stated that modifications to seaplane doors to provide a quick release mechanism or the fitting of pop-out windows would enhance the opportunity for rapid egress in the event that the aircraft becomes submerged. The advisory suggested that TC may wish to consider additional methods to facilitate rapid emergency egress from seaplanes in the event that the cabin becomes submerged. In its response, TC indicated that jettisonable doors and large frangible or pop-out windows that would facilitate emergency exits is within the authority of the state of design authority, and that TC would not take any action relating to this issue.
TSB Aviation Safety Information Letter A040046, Passenger Briefings and Safety Features Cards in Seaplane Operations:This information letter was produced following the 2004 accident involving a Cessna A185F seaplane cited in the previous paragraph. The information letter highlighted that the regulations were not instructive with regard to a requirement for the briefing to include information specific to underwater egress procedures in seaplane operations. Furthermore, there is no requirement for seaplane safety feature cards to contain information or special procedures unique to underwater egress. The information letter concluded by highlighting that the risks associated with seaplane passengers and pilots being trapped inside a submerged aircraft are increased when the pre-flight safety briefing and the safety features cards do not include information specific to underwater egress. In its response, TC advised that it sent 100 copies of its revised brochure entitled Seaplanes – A Passenger’s Guide (TP 12365) to every commercial seaplane operator in Canada, with instructions on how to order more if needed.
Appendix B – TSB Aircraft accident investigation reports citing seaplane egress difficulties
TSBAircraft Accident Investigation Reports Citing Seaplane Egress DifficultiesOccurrenceTypeFatalitiesCommentsA10Q0087 Lake Buccaneer 6 The 2 occupants of the aircraft were seriously injured due to the lack of effective restraints. These injuries rendered them unconscious and they were unable to survive the post-crash water environment.
A09P0397 DHC-2 Beaver 6 Because of impact damage, only 2 of the 4 exits were usable following the crash. Five of the 6 persons who drowned removed their seatbelts after the impact, which indicates that they survived the impact, but were unable to locate a suitable egress point. The TSBpublished recommedations A11-05 and A11-06 following this report.
A05O0147 Cessna 185F 1 In this occurrence, the pilot drowned. The Board indicated its concern as follows: “Based on historical data, occupants of submerged seaplanes who survive the accident continue to be at risk of drowning inside the aircraft. Existing defences against drowning in such circumstances may not be adequate. In light of the potential loss of life associated with seaplane accidents on water, the TSB is concerned that seaplane occupants may not be adequately prepared to escape the aircraft after it becomes submerged. Of equal concern is that the rescuers, in this occurrence, could not access the cabin from outside.”
A05Q0178 Cessna 185 1 After the aircraft capsized while attempting to take off, 5 occupants were able to escape. One occupant, seated in the front right seat, was unable to escape the submerged cabin and drowned.
A04W0114 Cessna 185F 2 The survivors were unable to locate the interior door handles after the seaplane became inverted and submerged in the water, thus preventing them from using the doors as emergency exits. The TSB report presented the following Board concern: “Based on historical data, occupants of submerged seaplanes who survive the accident continue to be at risk of drowning inside the aircraft. Existing defences against drowning in such circumstances may not be adequate. In light of the potential loss of life associated with seaplane accidents on water, the TSB is concerned that seaplane occupants may not be adequately prepared to escape the aircraft after it becomes submerged. The Board is also concerned that seaplanes may not be optimally designed to allow easy occupant egress while under water.”
A03F0164 Cessna 185 1 One passenger was unable to escape from the aircraft and drowned.
A03Q0083 Cessna U206F 1 The pilot exited the aircraft and told the passenger to follow. The passenger, disoriented, went to the rear of the aircraft and drowned.
A00P0103 DHC-2 Beaver 3 In this fatal occurrence, the aft centre of gravity contributed to the cause of the accident. This aircraft had no stall warning system. Two passengers were unable to escape the aircraft and another drowned while attempting to swim to shore.
A98P0215 DHC-2 Beaver 5 All 5 occupants drowned following a survivable impact with water. Medical information revealed that the occupants had been restrained during the initial impact and rollover.
A97P0230 Cessna 180J 3 All 3 occupants drowned following a survivable impact with water.
A97C0090 Cessna TU206G 2 The 2 passengers were unable to exit the aircraft and drowned.
A96Q0114 Cessna U206F 4 The pilot and 3 passengers drowned inside the aircraft. Prior to this occurrence, the Canadian Aviation Safety Board forwarded an Aviation Safety Advisory to TC indicating that the rear double cargo door of the Cessna 206 was hard to open. No measures were taken to have the doors modified.
A94O0213 Cessna A185E 3 One passenger was able to exit the aircraft through the left door window and swim to shore. The pilot and the other 2 passengers did not survive. Both doors remained closed throughout the impact, but both side door windows were fully open when the aircraft was located.
A91Q0267 Cessna A185F 2 The handle of the right door was broken, however, the passenger occupying the right front seat managed to exit the aircraft through the window of the right door. The pilot and rear seat passenger, who had no signs of physical trauma on their bodies, drowned.
A91C0122 DHC-2 Beaver 1 The pilot survived the impact, but drowned while trying to escape from the wreckage.
A90W0265 DHC-2 Beaver 2 One passenger was able to exit the aircraft; however, the pilot and second passenger did not and drowned. Damage to the wings blocked both right doors and the left cabin door.
A89O0369 Cessna TU206G 1 The pilot exited the aircraft by kicking open the port-door window. However, there was no door beside the front passenger; that passenger was unable to egress and drowned.
A89C0089 Cessna A185 1 One of the 4 occupants was trapped in the aircraft and drowned.
A88O0203 DHC-2 Beaver 2 The pilot and front-seat passenger were unable to escape from the sinking aircraft and drowned.
A87P0901 Cessna 180J 1 The pilot was able to escape from the submerged aircraft through the left door. He then repeatedly dove underwater in an attempt to rescue the other occupant, but was unable to locate her. She was found by rescuers at the rear of the cabin 20 minutes later, but died in hospital several days after the accident. Neither occupant suffered incapacitating injuries during the crash sequence.
A87P0021 Cessna A185F 1 The pilot was unable to escape from the submerged aircraft and drowned.
A86P0058 DHC-2 Beaver 5 The pilot escaped with serious injuries and 5 passengers drowned. The report highlighted that, when the centre seat is installed, the rotary knob for opening the rear door is located behind the seat. As such, the door cannot easily be opened by passengers sitting in the centre seat.

Appendix C – TSB Aircraft acident investigation reports of stall accidents involving an aircraft without a stall warning system.
TSBAircraft acident investigation reports of stall accidents involving an aircraft without a stall warning system.OccurrenceTypeFatalitiesSynopsisA11C0100 DHC-2 Beaver 5 The Lawrence Bay Airways Ltd. float-equipped de Havilland DHC-2 (registration C-GUJX, serial number 1132) stalled and crashed on departure. All 5 occupants suffered fatal injuries. The aircraft was not equipped with a stall warning system.
A10Q0117 DHC-2 Beaver 2 The Nordair Québec 2000 Inc. de Havilland DHC-2 Mk. 1 amphibious floatplane (registration C-FGYK, serial number 123) stalled and crashed on departure. Two of the 5 occupants suffered fatal injuries. The aircraft was not equipped with a stall warning system.
A09P0397 DHC-2 Beaver 6 The Seair Seaplanes Ltd. de Havilland DHC-2 Mk. 1 (serial number 1171, registration C-GTMC) stalled and crashed on departure. Six of the 8 occupants suffered fatal injuries. The aircraft did not have a functioning stall warning system, which the TSB noted as a cause or contributing factor.
A08A0095 DHC-2 Beaver 0 The Labrador Air Safari (1984) Inc. float-equipped de Havilland DHC-2 (Beaver) aircraft
(registration C-FPQC, serial number 873) stalled and crashed during an attempted forced landing. Five of the 7 occupants suffered serious injuires. The aircraft was not equipped with a stall warning system.
A05Q0157 DHC-2 Beaver 1 The float-equipped de Havilland DHC-2 Beaver (registration C-FODG, serial number 205) stalled and crashed during departure. The pilot, who was the only occupant, suffered fatal injuries. The aircraft was not equipped with a stall warning system.
A04C0098 DHC-2 Beaver 4 The Pickerel Arm Camps de Havilland DHC-2 Beaver (C-GQHT, serial number 682) stalled and crashed on approach. All 4 occupants suffered fatal injuries. The aircraft was not equipped with a stall warning system.
A01Q0166 DHC-2 Beaver 3 The Air Saint-Maurice Inc. float-equipped Beaver de Havilland DHC-2 Mk. 1 (registration C-GPUO, serial number 810) stalled and crashed on approach. Three of the 7 occupants suffered fatal injuries. The aircraft was not equipped with a stall warning system, and the TSBnoted this fact as a risk factor.
A01P0194 DHC-2 Beaver 5 The Wahkash Contracting Ltd. de Havilland DHC-2 Beaver floatplane (C-GVHT, serial number 257) stalled and crashed on approach. All 5 occupants suffered fatal injuries. The aircraft was not equipped with a stall warning system, and the TSB noted this fact as a finding.
A00Q0006 DHC-2 Beaver 3 The Cargair Ltd. DHC-2 Beaver (C-FIVA, serial number 515) stalled and crashed during climb. Three of the 6 occupants suffered fatal injuries. The aircraft was not equipped with a stall warning system.
A98P0194 DHC-2 Beaver 0 The Air Rainbow Midcoast float-equipped de Havilland DHC-2 Beaver (C-GCZA, serial number 1667) stalled and crashed during an attempted overshoot. The occupants were not injured, but the aircraft suffered significant damage. The aircraft was not equipped with a stall warning system, and the TSB noted as a cause or contributing factor the fact that the pilot had no warning of the impending stall.


FootnotesFootnote 1

All times are Eastern Daylight Time (Coordinated Universal Time minus 4 hours).

Return to footnote1referrerFootnote 2

William K. Kershner, The Advanced Pilot’s Flight Manual, 5th Edition (Iowa State University Press, 1992), p. 200.

Return to footnote2referrerFootnote 3

Aviation Publishers Co. Ltd., From the Ground Up (26th Edtion, 1991), p.25.

Return to footnote3referrerFootnote 4

De Havilland, DHC-2 Beaver Flight Manual, PSM 1-2-1 (1956), section IV.

Return to footnote4referrerFootnote 5

Canadian Aviation Regulations (CARs), 523.207, “Stall Warning”.

Return to footnote5referrerFootnote 6

Ibid.

Return to footnote6referrerFootnote 7

A stall warning system is a device that provides a clear and distinguishable stall warning to the pilot which is independent of the pilot’s recognition of inherent aerodynamic qualities near the stall, such as buffeting.

Return to footnote7referrerFootnote 8

CAR 605.27(3)

Return to footnote8referrerFootnote 9

CAR 523.785(b)

Return to footnote9referrerFootnote 10

Transportation Safety Board, Aviation Safety Study SA9401, A Safety Study of Survivability in Seaplane Accidents (seeAppendix A).

Return to footnote10referrerFootnote 11

Federal Aviation Administration, Aviation Safety, Alaskan Region, Fatal and Serious Injury Accidents in Alaska, A Retrospective of the years 2004 through 2009 with Special Emphasis on Post Crash survival (December 2010).

Return to footnote11referrerFootnote 12

(1) Small Aircraft Crashworthiness, Volume 1, TP 8655E (prepared by Sypher: Mueller International Inc., July 1987), page 46. (2) Canadian Aviation Safety Board, Study of the Influence of Shoulder Harnesses in Aviation Safety (1987).

Return to footnote12referrerFootnote 13

National Transportation Safety Board, Safety Report, NTSB/SR-85/01, General Aviation Crashworthiness Project, Phase Two – Impact severity and potential injury prevention in General Aviation accidents (March 15, 1985).

Return to footnote13referrerFootnote 14

A survivable accident is one in which the forces transmitted to the occupant through the seat and restraint system do not exceed the limits of human tolerance to abrupt accelerations, and in which the structure in the occupant’s immediate environment remains substantially intact to the extent that a livable volume is provided throughout the crash sequence. (National Transportation Safety Board, Safety Report, NTSB/SR-83/01, General Aviation Crashworthiness Project, Phase One[June 27, 1983], page 3.)

Return to footnote14referrerFootnote 15

C.J. Brooks, C.V. MacDonald, L. Donati, and J.T. Taber, “Civilian Helicopter Accidents into Water: Analysis of 46 Cases, 1979-2006,” Aviation, Space, and Environmental Medicine, 79, 10 (2008), pp. 935-940.

Return to footnote15referrerFootnote 16

TSB Aviation Safety Study SA9401 (Appendix A)

Return to footnote16referrerFootnote 17

Report to the Chief Coroner of British Columbia, Death Review Panel: Four Fatal Aviation Accidents Involving Air Taxi Operations on British Columbia’s Coast (March 2012).

Return to footnote17referrerFootnote 18

Transport Canada Civil Aviation, Floatplane Safety Review, Risk assessment.

Return to footnote18referrerFootnote 19

Transport Canada, Safety Risk Assessement, TSB Accident Report A00P0397 – Lyall Harbour Recommentation A11-05 (October 2011).

Return to footnote19referrerFootnote 20

Transport Canada, Civil Aviation Safety Alert No. 2011-03, “Voluntary Adoption of Floatplane Safety Best Industry Practices,” (2011-06-03).

Return to footnote20referrerFootnote 21

Transport Canada, “Flying On Board Seaplanes/Floatplanes,” http://www.tc.gc.ca/eng/civilaviation/standards/commerce-floatplanes.htm, last accessed on 25 September 2013.

Return to footnote21referrerFootnote 22

Canadian Aviation Regulations (CARs), 605.24, “Shoulder Harness Requirements”.