4. Language Rights and Service to the Public
Page 13 of 22
4.3 Services offered by Air Canada subsidiaries
Thibodeau v. Air Canada
This judgment93 deals with the language obligations to which Air Canada is subject pursuant to the Air Canada Public Participation Act 94 (ACPPA). It is in accordance with this Act that Air Canada is subject to the federal OLA and is required to ensure that its subsidiaries offer their services to and communicate with the public in both official languages.
In this case, the appellant, Mr. Thibodeau, had not received service in French on board a Montréal-Ottawa Air Ontario flight, even though there was significant demand for French on board the flight. He subsequently filed a complaint with OCOL, which concluded in its investigation report that Air Canada and its subsidiary Air Ontario had not fulfilled their obligations under subsection 10(2) of the ACPPA and Part IV of the OLA.
Mr. Thibodeau then filed an action against Air Canada and its subsidiary, Air Canada Regional Inc., in the Federal Court pursuant to section 77 of the OLA. He sought several remedies, including damages, a letter of apology from Air Canada, a declaration that Air Canada had not respected its language obligations and a declaration that Air Canada’s quasi-constitutional language obligations had priority over the provisions of collective agreements governing employer-employee relations.
In a judgment rendered August 24, 2005, Beaudry J. of the Federal Court allowed Mr. Thibodeau’s action against Air Canada.
1) Nature of the obligation: obligation of means or obligation of result?
The judge concluded that the obligation imposed on Air Canada by section 10 of the ACPPA and Part IV of the OLA is an obligation of result and not an obligation of means as claimed by Air Canada. To arrive at this conclusion, he conducted an analysis of the standard meaning of the words used in subsection 10(2) of the ACPPA,95 the background to the ACPPA and the intention of Parliament in adopting the OLA and the ACPPA.
In the judge’s view, the standard meaning of the words used in section 10 of the ACPPA suggests that when the legislator used the French phrase “est tenu de veiller à,” it was attempting to translate the meaning of the English version (“has the duty to ensure”), which is “wording . . . stronger than the language in the French version.” 96 The judge also dismissed Air Canada’s claims that the provisions of the ACPPA have to be interpreted in light of the Canadian Aviation Regulations 97 that, unlike the ACPPA, clearly provide for an obligation of result. The judge noted that any interpretation of section 10 of the ACPPA should instead be made in light of the OLA, which is the quasi-constitutional statute referred to by the ACPPA. In so doing, Beaudry J. confirmed that sections 23 and 25 of the OLA imposed obligations of result on the institutions concerned.
In the judge’s opinion, an obligation of result arises when the party owing the duty (in this case, Air Canada) is required to provide a specific and determined result:
The obligation of result, on the contrary, suffices to impose a presumption of fault on the respondent. Accordingly, in order to prove it is not liable, the respondent must establish that the non-performance or harm results from a force majeure. Absence of fault is not sufficient to exonerate it.98
The evidence on record established that Air Canada had not provided service in French on August 14, 2000 on the flight in question. As Air Canada had presented no evidence of force majeure preventing it from fulfilling its statutory obligation, the judge dismissed its arguments that it should avoid liability in view of the steps it had taken to comply with the OLA. However, these steps were considered relevant in determining the relief to be granted.
2) Whether provisions of a collective agreement take precedence over language obligations
In response to Air Canada’s claims that its subsidiaries were bound by the provisions of their employees’ collective agreements and thus unable to fulfill their language obligations, the judge concluded that section 82 of the OLA provides that Parts I to IV of the OLA prevail over provisions that are inconsistent with any other federal legislation, including the Canada Labour Code99 (CLC). Thus, “[t]he collective agreements under the aegis of the CLC must not be incompatible with the implementation of the OLA’s purpose. If some incompatibility develops, the OLA will prevail over the provisions of the collective agreement.”100 Based on this principle, the judge concluded that Air Canada should make the necessary arrangements with its unions to comply with the OLA.
3) Admissibility as evidence of the OCOL investigation report and reports from the Standing Joint Committee on Official Languages
The defendants raised a number of questions relating to the admissibility of the evidence provided by the applicant. Firstly, the judge held that Standing Joint Committee on Official Languages reports could be admitted as evidence to assist the judge in determining appropriate relief, insofar as they paint a picture of the problems existing when the reports were prepared. Secondly, the judge ruled that an affidavit filed by an OCOL employee in another action (which was discontinued) without the exhibits being attached was not admissible as evidence. Finally, the judge reiterated, as in the recent ruling of the Federal Court of Appeal in Forum des maires,101 that the investigation report by OCOL was admissible as evidence, but that the conclusions stated in the report were not binding on the Court.
4) Whether Air Canada is subject to the provisions of the Canadian Charter of Rights and Freedoms
The applicant had argued that the Charter applies to the activities of Air Canada and its subsidiaries. Given that Air Canada’s incorporating legislation states that the Corporation is not an agent of the Crown, that Air Canada is now a private company, that it does not exercise a government function and that it does not implement a government policy or program, the judge concluded that Air Canada and its subsidiaries are not subject to the Charter.
5) Just and appropriate remedy in the circumstances
In a separate judgment on remedies,102 Beaudry J. relied on the principles stated by the Supreme Court of Canada in Doucet-Boudreau103 for determining the just and appropriate remedy in the circumstances.
With regard to the declaratory orders, he held that the order of August 24, 2005 sufficed to establish that Air Canada was subject to the OLA, that Air Canada had not fulfilled its language obligations toward Mr. Thibodeau, that the collective agreements signed by Air Canada must not be inconsistent with the implementation of the purpose of the OLA and that the OLA takes precedence over collective agreements when they are incompatible with the OLA.
As for the mandatory order sought by Mr. Thibodeau requiring Air Canada to take certain steps to comply with the OLA within six months, the judge held that such an order was not justified in this case since no proof of a systemic breach had been presented. The judge also took into account that the seriousness of the breaches in the case at hand could be distinguished from other judicial proceedings in which such orders were granted.104
The judge concluded that the application for damages made by the applicant had already been settled in decisions that were part of the claims process during the restructuring of Air Canada in Ontario Superior Court.
With regard to the letter of apology sought by the applicant, the judge ruled that such a letter was justified given the circumstances and the persistence Mr. Thibodeau had shown in order to obtain judicial recognition that his language rights had been infringed upon. However, he deemed that the circumstances did not justify displaying the letter at all of its customer service counters.
The judge refused to award the applicant costs as he was representing himself, requested no assistance from counsel and was not a lawyer himself. However, he held that the applicant was nevertheless entitled to compensation for the time spent ensuring his language rights were respected. He thus awarded Mr. Thibodeau a sum of money for the expenses he had incurred appearing in court and to compensate him for the time spent preparing the pleadings and reviewing the legislation and case law submitted by both himself and the other parties.
It should be noted that this judgment was appealed by Air Canada and is currently before the Federal Court of Appeal.
