VII. Court Action Initiated by the Commissioner
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1. Via Rail
A long-standing dispute with Via Rail regarding the deficiencies in French language service on trains in the Montreal-Ottawa-Toronto triangle has recently been settled to the satisfaction of the Commissioner. Court action in this case was begun in 1991 following the investigation of complaints from various individuals and the refusal of Via Rail at the time to make the changes in personnel necessary to improve service in French.122 Via Rail claimed that seniority provisions in collective agreements prevented it from acting, even though it appeared to acknowledge that the availability of services in French on the lines in question needed improvement.
The Commissioner had always taken the position that provisions in collective agreements could not justify a breach of the OLA regarding services to the public in French and English.
Delays in the court process were in part due to postponements agreed to by the parties to give Via Rail the opportunity to negotiate with unions and reach a satisfactory conclusion. Efforts by Via Rail began to bear fruit in 1998 with significant changes in the composition of work units, including the creation of new bilingual positions. The role of seniority in designating the members of a work unit was thus diminished in favour of ensuring that members of the public could be served in either French or English. In light of the changes that have been made by Via Rail, the Commissioner withdrew the original court application and so informed the Federal Court. Nevertheless, the Commissioner will continue to monitor the situation to ensure that the measures introduced by Via Rail are fully implemented.
2. Air Canada
Although Air Canada was privatized in 1988, it remained subject to the provisions of the OLA by virtue of section 10 of the Air Canada Public Participation Act. With respect to services to the public (Part IV of the OLA), the airline was obliged to make them available in either official language wherever there was significant demand.123 Despite its statutory obligations, Air Canada was the subject of a growing number of complaints regarding difficulties obtaining in-flight and airport services in French at various locations. This was also true regarding services made available by wholly owned subsidiaries of Air Canada acquired during a period of expansion from 1989 to 1995 (Air Nova, Air Ontario and Air BC).
Legal actions against Air Canada regarding the lack of services in French at Pearson and Halifax airports
The lack of on-ground services in French at Pearson International Airport in Toronto was the subject of specific complaints to the Office of the Commissioner. After a full investigation a final report was submitted to Air Canada in July 1996, containing a number of recommendations about public announcements, check-in counters, departure gates (Rapidair) and on-site purchase of tickets. The aim of the Commissioner’s recommendations was to ensure that sufficient bilingual personnel were on duty at all times so the public might be served in either official language. While Air Canada might have a reasonable number of bilingual employees as a percentage of its overall staff, it was imperative that work assignments be made with a view to providing services at these various points of contact with the public in either official language. The investigation of the Commissioner had revealed that the bidding procedure for assigning agents was governed by a rule of seniority in the collective agreement regardless of passenger requirements for service in both official languages, thereby preventing the company from meeting its obligations under the OLA. Air Canada claimed that the latter prevented it from taking the steps necessary to ensure that work units were staffed with sufficient bilingual personnel. The Commissioner was of the opinion that Air Canada cannot invoke these provisions of its collective agreement, or the effect of their application, to justify its failure to comply with the OLA.
When the response of Air Canada to the recommendations proved insufficient, the Commissioner initiated legal action (September 1996) before the Federal Court for breach of obligations under sections 23 (services to the public) and 28 (duty to make an active offer of service in either official language) of the OLA. In addition to issues of interpretation related to these two sections, the case sought to confirm that statutory obligations under the OLA regarding services to the public take precedence over seniority provisions in collective agreements. Similar complaints were received with respect to the Halifax Airport. Since the issues raised were the same as those at Pearson International, and in light of the inadequate response of Air Canada to the Commissioner’s recommendations regarding the latter, additional legal action was commenced in the Federal Court (September 1996) regarding the airport in Halifax. This action was taken when the response to the Commissioner’s recommendations during a follow-up procedure proved to be inadequate.
