Indexed As: Thibodeau v. Air Canada. Federal Court Bédard, J. July 13, 2011.

Transcription

1 Michel Thibodeau and Lynda Thibodeau (applicants) v. Air Canada (respondent) and Commissioner of Official Languages (intervenor) (T ; T ; 2011 FC 876) Indexed As: Thibodeau v. Air Canada Federal Court Bédard, J. July 13, Summary: Two Air Canada passengers filed eight complaints with the Commissioner of Official Languages respecting the lack of services in French for two round trip flights (Ottawa-Toronto- Atlanta/Atlanta-Toronto-Ottawa and Toronto-Philadelphia-St. Maartens/St. Maartens-Charlotte- Toronto). The passengers complained that there were no services in French on the Toronto- Atlanta and Atlanta-Toronto flights, no services in French at the check-in counter or gate in Atlanta and that a baggage announcement in Ottawa was in English only. Respecting the second round trip, the passenger complained that there were no French services on the Charlotte-Toronto flight and that a baggage announcement in Toronto was in English only. The Commissioner rejected the complaint respecting the check-in counter and gate in Atlanta, because it was not an airport where there was a significant demand requiring the provision of services in French. The Ottawa baggage claim complaint was rejected for want of proof. The Commissioner found that the remaining claims had merit. The passengers applied under s. 77 of the Official Languages Act for a remedy for Air Canada's breach of its linguistic obligations under the Act. The passengers sought a declaratory order respecting the breaches, an apology and $25,000 damages. Further, the passengers argued that the breaches were systemic, warranting institutional orders against Air Canada and exemplary and punitive damages. Air Canada did not object to a declaratory order and an apology, but argued that damages were restricted by the Montreal Convention and that the breaches were not systemic. The Federal Court granted a declaration, based on Air Canada's admissions, that Air Canada breached its linguistic duties under the Act by failing to have a bilingual flight attendant on the Toronto-Atlanta flight, by the pilot's English-only announcement re arrival time and weather in Toronto on the Atlanta-Toronto flight (untranslated by the bilingual flight attendant on board), by failing to have a bilingual flight attendant on the Charlotte-Toronto flight, and by an English-only announcement concerning baggage collection at the Toronto airport. The entitlement to a remedy under the Act took precedence over the Montreal Convention where the two conflicted. The court awarded each passenger $6,000 damages, ordered Air Canada to apologize to each of them in writing, ordered Air Canada to make reasonable efforts to comply with its obligations under the Act and ordered Air Canada to introduce, within six months, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language obligations, particularly to identify Jazz flights where bilingual flight attendants were not assigned notwithstanding a significant demand for service in French. Aeronautics - Topic 5146 Airlines - Carriage of passengers - Liability - Statutory limitations - Air Canada violated

2 the Official Languages Act by failing to have bilingual flight attendants on board two international flights to the United States notwithstanding that there was a significant demand for French services on those flights - The complaining passengers sought damages - Air Canada argued that the Montreal Convention "which comes into play once an incident or a situation occurs during international carriage and sets out, in a limited way, the causes of action which may give rise to compensation and the compensable types of damage" took precedence over the right to damages under s. 77(4) of the Act - Article 29 of the Convention restricted "any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise" - The Federal Court held that there was a conflict between the Convention (international treaty obligation) and the quasi-constitutional Official Languages Act - The court held that s. 77(4) of the Act prevailed over the Convention on two grounds: (1) Parliament intended to give precedence to the remedies under the Act and (2) that by giving precedence to the Act over the Convention, the court was giving effect to a quasi-constitutional Act without violating Canada's treaty obligations - The court stated that "a departure from the Montreal Convention to ensure the efficacy of proceedings aimed at enforcing Air Canada's duties as to the official languages has no effect on the other signatory countries of the Convention, and does not weaken the Convention or imperil the integrity of the uniform liability regime it enshrines.... this is a very minor circumvention of the Montreal Convention that has no impact on the liability of the other carriers subject to the Convention or on Canada's treaty obligations; thus, the remedy and penalties set out in the OLA receive their full effect." - See paragraphs 47 to 83. Civil Rights - Topic 2703 Language - General principles - Interpretation of language rights legislation - The Federal Court held that the Official Languages Act, a quasi-constitutional statute, "commands a broad and liberal interpretation" - See paragraph 62. Civil Rights - Topic 2866 institutions, etc. - Breach - What constitutes - [See Civil Rights - Topic 2874]. Civil Rights - Topic institutions, etc. - Breach - Remedies - Two Air Canada passengers were entitled to damages under s. 77(4) of the Official Languages Act for Air Canada's violation of its obligation to have bilingual flight attendants on two international flights - Guaranteed service in French was not provided notwithstanding the existence of a significant demand for French services - The Federal Court noted that "there is always some arbitrariness when it comes to determining the appropriate and just amount of damages to award" - The court stated that the damages were to be assessed based on "the harm sustained, general recognition of the importance of the rights at issue and deterrence" - See paragraph 90. Civil Rights - Topic

3 institutions, etc. - Breach - Remedies - [See Civil Rights - Topic 2874]. Civil Rights - Topic 2874 institutions, etc. - Air Canada - Two Air Canada passengers filed complaints with the Commissioner of Official Languages respecting the lack of services in French for two round trip international flights to the United States - Air Canada admitted that there were no bilingual flight attendants on a Toronto-Atlanta flight, and on a Charlotte-Toronto flight, and that a baggage announcement in Toronto was in English only notwithstanding a significant demand for French services - The passengers applied under s. 77 of the Official Languages Act for a remedy for Air Canada's breach of its linguistic obligations under the Act - Particularly, the passengers sought a declaratory order respecting the breaches, an apology and $25,000 damages - Further, the passengers argued that the breaches were systemic, warranting institutional orders against Air Canada and exemplary and punitive damages - Air Canada did not object to a declaratory order and an apology, but argued that damages were restricted by the Montreal Convention and that the breaches were not systemic - The Federal Court granted a declaration that Air Canada breached its linguistic duties under the Act by failing to have a bilingual flight attendant on the Toronto-Atlanta flight, by the pilot's English-only announcement re arrival time and weather in Toronto on the Atlanta-Toronto flight (untranslated by the bilingual flight attendant on board), by failing to have a bilingual flight attendant on the Charlotte- Toronto flight, and by an English-only announcement concerning baggage collection at the Toronto airport - The entitlement to a remedy under the Act took precedence over the Montreal Convention where the two conflicted - The court awarded each passenger $6,000 damages ($1,500 for each breach), ordered Air Canada to apologize to each of them in writing, ordered Air Canada to make reasonable efforts to comply with its obligations under the Act and ordered Air Canada to introduce, within six months, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language obligations, particularly to identify Jazz flights where bilingual flight attendants were not assigned notwithstanding a significant demand for service in French. Civil Rights - Topic 2967 Language - Complaints - Evidence - Section 79 of the Official Languages Act provided that "in proceedings under this Part relating to a complaint against a federal institution, the court may admit as evidence information relating to any similar complaint under the Act in respect of the same federal institution" - Air Canada passengers, who complained of two international flights without bilingual flight attendants to provide service in French, sought to admit evidence of similar past violations of the Act to establish a systemic failure warranting institutional orders to force Air Canada to comply with its linguistic duties - The Federal Court held that the purpose of s. 79 was to allow complainants, or the Commissioner, to argue that the breaches of the Act gave rise to a systemic problem affecting what would constitute an appropriate and just remedy - The court rejected Air Canada's argument that only the Commissioner, not individual complainants, had standing to invoke s The complainants had public interest standing - The evidence was admitted to show a systemic failure by Air Canada that

4 warranted institutional orders to ensure that Air Canada took reasonable steps to comply with its linguistic duties - See paragraphs 91 to 155. Civil Rights - Topic 2969 Language - Complaints - Remedies - Air Canada violated the Official Languages Act by failing to provide services in French (bilingual flight attendants) on two international flights - The Federal Court stated that "although the alleged violations must be assessed as of the time of the filing of the complaint, the appropriate relief under subsection 77(4) of the OLA must be determined in view of the situation at the time the case is heard. The court may therefore take account of developments in the situation and the corrective measures that have been taken." - See paragraph 42. Civil Rights - Topic 2969 Language - Complaints - Remedies - [See Damages - Topic ]. Damages - Topic Exemplary or punitive damages - Language rights violations - Air Canada violated the Official Languages Act by failing to provide services in French (bilingual flight attendants) on two international flights - The complaining passengers claimed punitive or exemplary damages under s. 77(4) of the Act - The Federal Court denied punitive or exemplary damages, stating that "the attitude of Air Canada's employees and Air Canada itself in no way calls for an award of exemplary damages. The evidence does not reveal a malicious, oppressive and high-handed attitude on the part of Air Canada that would call for such a remedy. As I have concluded previously, Air Canada does not do enough to comply with its duties under the OLA; that being said, her breaches are not such that the imposition of a 'penalty' is warranted." - See paragraph 164. Statutes - Topic 504 Interpretation - Quasi-constitutional statutes (e.g., Official Languages Act) - The Federal Court stated that the courts "have consistently held that the [Official Languages Act] has quasi-constitutional status" and must be interpreted as such - See paragraph 7. Cases Noticed: Canada (Attorney General) v. Viola et al., [1991] 1 F.C. 373; 123 N.R. 83 (F.C.A.), refd to. [para. 7]. R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 7]. Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 7]. Desrochers et al. v. Industry Canada et al., [2009] 1 S.C.R. 194; 384 N.R. 50; 2009 SCC 8, refd to. [para. 7]. Forum des maires de la Péninsule acadienne v. Agence canadienne d'inspection des aliments, [2004] 4 F.C.R. 276; 324 N.R. 314; 2004 FCA 263, refd to. [para. 28]. R. v Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 38]. Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3;

5 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 39]. Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 41]. Morten v. Air Canada, 2009 CHRT 3, refd to. [para. 46]. St. Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 57]. Abnett v. British Airways plc, [1997] 1 All E.R 193; 206 N.R. 211 (H.L.), refd to. [para. 68]. El Al Israel Airlines Ltd. v. Tseng (1999), 525 U.S. 155; 119 S. Ct. 662, refd to. [para. 69]. King v. American Airlines, 2001 US App. Lexis (Ct. App., 2nd Cir.), refd to. [para. 73]. Carey v. United Airlines, 2001 US App. Lexis (Ct. App., 9th Cir.), refd to. [para. 73]. Simard v. Air Canada, 2007 QCCS 4452, refd to. [para. 74]. Chau et al. v. Delta Air Lines Inc. et al., [2003] O.T.C. 945; 67 O.R.(3d) 108 (Sup. Ct.), refd to. [para. 74]. Plourde v. Service aérien FBO inc. (Skyservice), 2007 QCCA 739, refd to. [para. 74]. Walton et al. v. MyTravel Canada Holdings Inc. et al. (2006), 280 Sask.R. 1; 151 A.C.W.S.(3d) 561; 2006 SKQB 231, refd to. [para. 74]. Connaught Laboratories Ltd. v. British Airways, [2002] O.T.C. 639; 116 A.C.W.S. (3d) 322 (Sup. Ct.), refd to. [para. 74]. de Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64; 408 N.R. 80; 2010 SCC 51, refd to. [para. 87]. Fédération Franco-Ténoise et al. v. Canada (Attorney General) et al., [2006] Northwest Terr. Cases 20; 2006 NWTSC 20, refd to. [para. 89]. Commissaire aux langues officielles du Canada v. Air Canada (1997), 141 F.T.R. 182; 77 A.C.W.S.(3d) 1166 (T.D.), refd to. [para. 93]. Thibodeau v. Air Canada et al., [2006] 2 F.C.R. 70; 292 F.T.R. 67; 2005 FC 1156, refd to. [para. 94]. Lavigne v. Canada Post Corp. (2009), 350 F.T.R. 46; 2009 FC 756, refd to. [para. 94]. Commissaire aux langues officielles du Canada v. Air Canada (1999), 240 N.R. 390; 88 A.C.W.S.(3d) 995 (F.C.A.), refd to. [para. 95]. Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 99]. Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 99]. Thibodeau v. Air Canada et al. (2005), 284 F.T.R. 79; 2005 FC 1621, refd to. [para. 109]. Thibodeau v. Air Canada et al. (2007), 375 N.R. 195; 165 A.C.W.S.(3d) 542; 2007 FCA 115, refd to. [para. 109]. Statutes Noticed: Air Canada Public Participation Act, R.S.C (4th Supp.), c. 35, sect. 10(1), sect. 10(2) [para. 10]. Carriage by Air Act, R.S.C. 1985, c. C-26, Schedule VI (Montreal Convention), Preamble, art. 1, art. 2, art. 17, art. 18, art. 19, art. 21, art. 29 [para. 51].

6 Montreal Convention - see Carriage by Air Act, R.S.C. 1985, c. C-26, Schedule VI. Official Languages Act, R.S.C (4th Supp.), c. 31, sect. 21, sect. 22, sect. 23, sect. 25 [para. 11]; sect. 56(1) [para. 19]; sect. 77(1) [para. 23]; sect. 77(4) [para. 26]; sect. 79 [para. 92]. Official Languages Act Regulations (Can.), Official Languages Regulations, SOR/92-48, sect. 7(2), sect. 7(4)(c) [para. 12]. Official Languages Regulations - see Official Languages Act Regulations (Can.). Authors and Works Noticed: Côté, Pierre-André, Beaulac, Stéphanie, and Devinat, Mathieu, Interprétation des lois (4th Ed. 2009), generally [para. 78]. Dempsey, Stephen, and Milde, Michael, International Air Carrier Liability, The Montreal Convention (2005), pp. 45, 46 [para. 65]. Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 550 [paras. 66, 80]. Counsel: Michel and Lynda Thibodeau, applicants, on their own behalf; David Rheault and Louise-Hélène Sénécal, for the respondent; Pascale Giguère and Ghady Thomas, for the intervenor. Solicitors of Record: David Rheault and Louise-Hélène Sénécal, Dorval, Quebec, for the respondent; Kevin Shaar, P Pascale Giguère and Ghady Thomas, Ottawa, Ontario, for the intervenor. This application was heard on March 28 and 29, 2011, at Ottawa, Ontario, before Bédard, J., of the Federal Court, who delivered the following judgment on July 13, Editor: Steven C. McMinniman Order accordingly. Civil Rights - Topic 2866 institutions, etc. - Breach - What constitutes - Two Air Canada passengers filed complaints with the Commissioner of Official Languages respecting the lack of services in French for two round trip international flights to the United States - Air Canada admitted that there were no bilingual flight attendants on a Toronto-Atlanta flight, and on a Charlotte-Toronto flight, and that a baggage announcement in Toronto was in English only notwithstanding a significant demand for French services - The passengers applied under s. 77 of the Official Languages Act for a remedy for Air Canada's breach of its linguistic obligations under the Act - Particularly, the passengers sought a declaratory order respecting the breaches, an apology and $25,000 damages - Further, the passengers argued that the breaches were systemic, warranting institutional orders against Air Canada and exemplary and punitive damages - Air Canada did not object to a declaratory

7 order and an apology, but argued that damages were restricted by the Montreal Convention and that the breaches were not systemic - The Federal Court granted a declaration that Air Canada breached its linguistic duties under the Act by failing to have a bilingual flight attendant on the Toronto-Atlanta flight, by the pilot's English-only announcement re arrival time and weather in Toronto on the Atlanta-Toronto flight (untranslated by the bilingual flight attendant on board), by failing to have a bilingual flight attendant on the Charlotte-Toronto flight, and by an English-only announcement concerning baggage collection at the Toronto airport - The entitlement to a remedy under the Act took precedence over the Montreal Convention where the two conflicted - The court awarded each passenger $6,000 damages ($1,500 for each breach), ordered Air Canada to apologize to each of them in writing, ordered Air Canada to make reasonable efforts to comply with its obligations under the Act and ordered Air Canada to introduce, within six months, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language obligations, particularly to identify Jazz flights where bilingual flight attendants were not assigned notwithstanding a significant demand for service in French. Civil Rights - Topic institutions, etc. - Breach - Remedies - Two Air Canada passengers filed complaints with the Commissioner of Official Languages respecting the lack of services in French for two round trip international flights to the United States - Air Canada admitted that there were no bilingual flight attendants on a Toronto-Atlanta flight, and on a Charlotte-Toronto flight, and that a baggage announcement in Toronto was in English only notwithstanding a significant demand for French services - The passengers applied under s. 77 of the Official Languages Act for a remedy for Air Canada's breach of its linguistic obligations under the Act - Particularly, the passengers sought a declaratory order respecting the breaches, an apology and $25,000 damages - Further, the passengers argued that the breaches were systemic, warranting institutional orders against Air Canada and exemplary and punitive damages - Air Canada did not object to a declaratory order and an apology, but argued that damages were restricted by the Montreal Convention and that the breaches were not systemic - The Federal Court granted a declaration that Air Canada breached its linguistic duties under the Act by failing to have a bilingual flight attendant on the Toronto-Atlanta flight, by the pilot's English-only announcement re arrival time and weather in Toronto on the Atlanta-Toronto flight (untranslated by the bilingual flight attendant on board), by failing to have a bilingual flight attendant on the Charlotte- Toronto flight, and by an English-only announcement concerning baggage collection at the Toronto airport - The entitlement to a remedy under the Act took precedence over the Montreal Convention where the two conflicted - The court awarded each passenger $6,000 damages ($1,500 for each breach), ordered Air Canada to apologize to each of them in writing, ordered Air Canada to make reasonable efforts to comply with its obligations under the Act and ordered Air Canada to introduce, within six months, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language obligations, particularly to identify Jazz flights where bilingual flight attendants were not assigned notwithstanding a significant demand for service in French.

8 Civil Rights - Topic 2969 Language - Complaints - Remedies - Air Canada violated the Official Languages Act by failing to provide services in French (bilingual flight attendants) on two international flights - The complaining passengers claimed punitive or exemplary damages under s. 77(4) of the Act - The Federal Court denied punitive or exemplary damages, stating that "the attitude of Air Canada's employees and Air Canada itself in no way calls for an award of exemplary damages. The evidence does not reveal a malicious, oppressive and high-handed attitude on the part of Air Canada that would call for such a remedy. As I have concluded previously, Air Canada does not do enough to comply with its duties under the OLA; that being said, her breaches are not such that the imposition of a 'penalty' is warranted." - See paragraph 164.