Thibodeau v. Air Canada

Thibodeau v. Air Canada
Court (s) Database
Federal Court Decisions
Date
2011-07-13
Neutral citation
2011 FC 876
File numbers
T-450-10, T-451-10
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date : 20110713
Dockets: T‑450‑10
T‑451‑10
Citation: 2011 FC 876
[REVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 13, 2011
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
MICHEL THIBODEAU and LYNDA THIBODEAU
Applicants
and
AIR CANADA
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
I. Issues
3
II. Facts and legislative framework
4
III. Analysis
16
A. Did Air Canada breach its linguistic duties towards the applicants?
16
B. What remedy is appropriate and just in the circumstances?
19
(1) Is it appropriate and just to award damages to the applicants?
24
(a) Does the Montreal Convention limit the Court’s remedial power to award damages?
25
(b) Amount of damages
44
(2) Is it appropriate and just to make institutional orders against Air Canada?
46
(3) Is it appropriate and just to award punitive and exemplary damages?
73
IV. Costs
78
[1] This is an application made under subsection 77(1) of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA).
[2] Michel Thibodeau and Lynda Thibodeau (“the applicants” or “Mr. and Ms. Thibodeau”) submit that the respondent, Air Canada, failed to fulfill its duties or obligations under Part IV of the OLA to ensure them services in French, and are seeking damages in relief. They also submit that Air Canada’s breaches of its official languages duties are systemic; therefore, they are asking the Court to make institutional orders against Air Canada and to order it to pay exemplary and punitive damages.
[3] The applicants have made separate applications, which were joined by an order of Prothonotary Aronovitch, dated May 5, 2010. Furthermore, it was agreed at the hearing that only Mr. Thibodeau would make representations, which would be entered in the file of his spouse, Ms. Thibodeau.
I. Issues
[4] This application raises the following issues:
A. Did Air Canada breach its linguistic duties towards the applicants?
B. What remedies are appropriate and just in the circumstances?
(1) Is it appropriate and just to award damages to the applicants?
(2) Is it appropriate and just to make institutional orders against Air Canada?
(3) Is it appropriate and just to award exemplary and punitive damages?
II. Facts and legislative framework
[5] This application was filed after each applicant had filed eight complaints with the Commissioner of Official Languages (the Commissioner) regarding the services they received from Air Canada on two trips they made between January and May 2009. The applicants claimed that on various occasions, at the Atlanta, Ottawa and Toronto airports and aboard three flights between Canada and the United States, they did not receive the services in French to which they were entitled.
[6] To properly grasp the nature of this dispute, it is useful to identify the legislation applicable to Air Canada with regard to language rights.
[7] The OLA, which applies to federal institutions, gives concrete expression to the principle of equality of Canada’s two official languages, which is enshrined at section 16 of the Canadian Charter of Rights and Freedoms (the Charter), and the right of members of the public to communicate with any central office in the official language of their choice, set out at section 20 of the Charter. The courts have consistently held that the OLA has quasi‑constitutional status (Canada (Attorney General) v Viola, [1991] 1 FC 373 (available on QL); R. v Beaulac, [1999] 1 SCR 768 (available on CanLII); Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 SCR 773; DesRochers v Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194 [DesRochers]).
[8] According to section 2 of the OLA, the purpose of this statute is to ensure respect for English and French as official languages, their equality of status and equal rights and privileges concerning their use in all federal institutions with respect to various aspects of federal institutions’ activities, including communications with, or the provision of services to, the public.
[9] The OLA concerns the federal institutions identified at section 3 of this statute.
[10] Air Canada was initially created as a Crown corporation and, as such, was subject to the Official Languages Act, R.S.C. 1970, c. O‑2 and, then, to the OLA, which replaced it. In 1988, Air Canada was privatized, and the Air Canada Public Participation Act, R.S.C. 1985, c. 35 (4th Supp.) (ACPPA) provided for the continuance of Air Canada under the Canada Business Corporations Act. Otherwise, under section 10 of the ACPPA, Air Canada is still subject to the OLA. Subsections 1 and 2 of section 10 of the ACPPA read as follows:
10. (1) The Official Languages Act applies to the Corporation.
Duty re subsidiaries
(2) Subject to subsection (5), if air services, including incidental services, are provided or made available by a subsidiary of the Corporation, the Corporation has the duty to ensure that any of the subsidiary’s customers can communicate with the subsidiary in respect of those services, and obtain those services from the subsidiary, in either official language in any case where those services, if provided by the Corporation, would be required under Part IV of the Official Languages Act to be provided in either official language.
10. (1) La Loi sur les langues officielles s’applique à la Société.
Communication avec les voyageurs
(2) Sous réserve du paragraphe (5), la Société est tenue de veiller à ce que les services aériens, y compris les services connexes, offerts par ses filiales à leurs clients le soient, et à ce que ces clients puissent communiquer avec celles-ci relativement à ces services, dans l’une ou l’autre des langues officielles dans le cas où, offrant elle-même les services, elle serait tenue, au titre de la partie IV de la Loi sur les langues officielles, à une telle obligation.
[11] Part IV of the OLA applies to communications with and the provision of services to the public. This part includes the following provisions:
Rights relating to language of communication
21. Any member of the public in Canada has the right to communicate with and to receive available services from federal institutions in accordance with this Part.
Where communications and services must be in both official languages
22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.
Travelling public
23. (1) For greater certainty, every federal institution that provides services or makes them available to the travelling public has the duty to ensure that any member of the travelling public can communicate with and obtain those services in either official language from any office or facility of the institution in Canada or elsewhere where there is significant demand for those services in that language.
Services provided pursuant to a contract
(2) Every federal institution has the duty to ensure that such services to the travelling public as may be prescribed by regulation of the Governor in Council that are provided or made available by another person or organization pursuant to a contract with the federal institution for the provision of those services at an office or facility referred to in subsection (1) are provided or made available, in both official languages, in the manner prescribed by regulation of the Governor in Council.
. . .
Where services provided on behalf of federal institutions
25. Every federal institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this Part to be provided in either official language.
Droits en matière de communication
21. Le public a, au Canada, le droit de communiquer avec les institutions fédérales et d’en recevoir les services conformément à la présente partie.
Langues des communications et services
22. Il incombe aux institutions fédérales de veiller à ce que le public puisse communiquer avec leur siège ou leur administration centrale, et en recevoir les services, dans l’une ou l’autre des langues officielles. Cette obligation vaut également pour leurs bureaux — auxquels sont assimilés, pour l’application de la présente partie, tous autres lieux où ces institutions offrent des services — situés soit dans la région de la capitale nationale, soit là où, au Canada comme à l’étranger, l’emploi de cette langue fait l’objet d’une demande importante.
Voyageurs
23. (1) Il est entendu qu’il incombe aux institutions fédérales offrant des services aux voyageurs de veiller à ce que ceux-ci puissent, dans l’une ou l’autre des langues officielles, communiquer avec leurs bureaux et en recevoir les services, là où, au Canada comme à l’étranger, l’emploi de cette langue fait l’objet d’une demande importante.
Services conventionnés
(2) Il incombe aux institutions fédérales de veiller à ce que, dans les bureaux visés au paragraphe (1), les services réglementaires offerts aux voyageurs par des tiers conventionnés par elles à cette fin le soient, dans les deux langues officielles, selon les modalités réglementaires.
[…]
Fourniture dans les deux langues
25. Il incombe aux institutions fédérales de veiller à ce que, tant au Canada qu’à l’étranger, les services offerts au public par des tiers pour leur compte le soient, et à ce qu’il puisse communiquer avec ceux-ci, dans l’une ou l’autre des langues officielles dans le cas où, offrant elles-mêmes les services, elles seraient tenues, au titre de la présente partie, à une telle obligation.
[12] According to section 22 of the OLA, federal institutions are required to communicate and provide services in both official languages where there is significant demand for those services in the minority language and where it is warranted by the nature of the office or facility. Under the Official Languages Regulations, SOR/92-48 (the Regulations), there is significant demand for the use of an official language in an airport where over a year, the total number of emplaned and deplaned passengers at that airport is at least one million and, for the other airports, where over a year at least 5 percent of the demand from the public for services at that airport is in that language (subsections 7(1) and 7(3)). With regard to services on board flights, the Regulations provide that some flights are automatically designated as routes on which there is significant demand in the minority language, whereas others are so designated in accordance with the volume of demand. In that regard, subsection 7(2) and paragraph 7(4)(c) of the Regulations provide as follows:
(2) For the purposes of subsection 23(1) of the Act, there is significant demand for services to the travelling public from an office or facility of a federal institution in an official language where the office or facility provides those services on a route and on that route over a year at least 5 percent of the demand from the travelling public for services is in that language.
. . .
(4) For the purposes of subsection 23(1) of the Act, there is significant demand for services to the travelling public from an office or facility of a federal institution in both official languages where
. . .
(c) the office or facility provides those services on board an aircraft
(i) on a route that starts, has an intermediate stop or finishes at an airport located in the National Capital Region, the CMA of Montreal or the City of Moncton or in such proximity to that Region, CMA or City that it primarily serves that Region, CMA or City,
(ii) on a route that starts and finishes at airports located in the same province and that province has an English or French linguistic minority population that is equal to at least 5 per cent of the total population in the province, or
(iii) on a route that starts and finishes at airports located in different provinces and each province has an English or French linguistic minority population that is equal to at least 5 per cent of the total population in the province;
(2) Pour l’application du paragraphe 23(1) de la Loi, l’emploi d’une langue officielle fait l’objet d’une demande importante à un bureau d’une institution fédérale en ce qui a trait aux services offerts aux voyageurs lorsque le bureau offre ces services sur un trajet et qu’au moins cinq pour cent de la demande de services faite par les voyageurs sur ce trajet, au cours d’une année, est dans cette langue.
[…]
(4) Pour l’application du paragraphe 23(1) de la Loi, l’emploi des deux langues officielles fait l’objet d’une demande importante à un bureau d’une institution fédérale en ce qui a trait aux services offerts aux voyageurs, dans l’une ou l’autre des circonstances suivantes :
[…]
c) le bureau offre les services à bord d’un aéronef :
(i) soit sur un trajet dont la tête de ligne, une escale ou le terminus est un aéroport situé dans la région de la capitale nationale, dans la région métropolitaine de recensement de Montréal ou dans la ville de Moncton, ou un aéroport situé à proximité de l’une de ces régions ou ville qui la dessert principalement,
(ii) soit sur un trajet dont la tête de ligne et le terminus sont des aéroports situés dans une même province dont la population de la minorité francophone ou anglophone représente au moins cinq pour cent de l’ensemble de la population de la province,
(iii) soit sur un trajet dont la tête de ligne et le terminus sont des aéroports situés dans deux provinces dont chacune a une population de la minorité francophone ou anglophone représentant au moins cinq pour cent de l’ensemble de la population de la province;
[13] Air Canada acknowledges that it is subject to the OLA and that, under section 25 of the OLA, it is responsible for the services provided by Jazz, with which it has a capacity purchase agreement.[1] The flights identified as those on which there is significant demand for services in French because at least 5 percent of the travelling public on that route requests service in that language are determined by surveys conducted every three years by Air Canada under the Treasury Board’s supervision.
[14] The alleged breaches of Air Canada’s language duties, which led to this dispute, occurred on two trips made by the applicants, which involved routes between Canada and the United States. The applicants made a first round trip between Ottawa and Atlanta, Georgia, with the following flight itineraries:
DATE
FLIGHT
ORIGIN
DESTINATION
January 23, 2009
AC457
Ottawa
Toronto
January 23, 2009
AC8627
Toronto
Atlanta
DATE
FLIGHT
ORIGIN
DESTINATION
February 1, 2009
AC8622
Atlanta
Toronto
February 1, 2009
AC484
Toronto
Ottawa
[15] The applicants submit that, on five occasions on this trip, Air Canada breached its duty to provide services in French to them:
No services in French on board (Jazz‑operated) flight AC8627 flying the Toronto‑Atlanta route on January 23, 2009; No services in French at the check‑in counter for (Jazz‑operated) flight AC8622 at the Atlanta airport on February 1, 2009; No services in French at the boarding gate for (Jazz operated) flight AC8622 at the Atlanta airport on February 1, 2009; No services in French on board flight AC8622 flying the Atlanta‑Toronto route on February 1, 2009; Announcement to passengers made in English only regarding a change of baggage carousel at the Ottawa airport on February 1, 2009.
[16] The applicants made a second trip, a round trip between Toronto and St. Maarten with a connection in Philadelphia on the departing flight and in Charlotte, North Carolina, on the returning flight.
DATE
FLIGHT
ORIGIN
DESTINATION
May 2, 2009
AC7916
Toronto
Philadelphia
May 3, 2009
US1209
Philadelphia
St. Maarten
DATE
FLIGHT
ORIGIN
DESTINATION
May 11, 2009
US1556
St. Maarten
Charlotte
May 12, 2009
AC7923
Charlotte
Toronto
[17] The applicants submit that, on two occasions on this trip, Air Canada breached its duty to ensure that they received services in French:
No services in French on board (Jazz‑operated) flight AC7923 flying the route from Charlotte to Toronto on May 12, 2009; Announcement to passengers regarding baggage collection at the Toronto airport on May 12, 2009, made in English only.
[18] The applicants filed a complaint with the Commissioner regarding each of these incidents.
[19] The Commissioner plays an important role in official languages protection. Its mandate is set out at section 56 of the OLA:
56. (1) It is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society.
56. (1) Il incombe au commissaire de prendre, dans le cadre de sa compétence, toutes les mesures visant à assurer la reconnaissance du statut de chacune des langues officielles et à faire respecter l’esprit de la présente loi et l’intention du législateur en ce qui touche l’administration des affaires des institutions fédérales, et notamment la promotion du français et de l’anglais dans la société canadienne.
[20] Section 58 of the OLA gives the Commissioner the authority to investigate any complaint regarding an act or omission to the effect that, in any particular instance or case, the status of an official language was not or is not being recognized, any provision of any Act of Parliament or regulation relating to the status or use of the official languages was not or is not being complied with, or the spirit and intent of the OLA was not or is not being complied with.
[21] Upon completion of his investigation, the Commissioner may report his or her opinion and the reasons therefore and make such recommendations as he or she sees fit (sections 63 and 64). However, the Commissioner does not have the authority to award remedies.
[22] In this case, the Commissioner did not accept the complaints as to the absence of services in French at the Air Canada check‑in counter and gate at the Atlanta airport because it was not an airport where there is significant demand requiring the provision of services in French. The Commissioner also did not accept the complaint regarding the announcement made to passengers at the Ottawa airport because the Commissioner was of the opinion that he could not confirm whether Air Canada had committed the impugned acts. However, the Commissioner did confirm that the other complaints filed by the applicants had merit.
[23] According to subsection 77(1) of the OLA, a remedy is available to any person who has made a complaint to the Commissioner in respect of a right or duty provided by various provisions of the OLA, including the sections under Part IV:
77. (1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or Part IV, V or VII, or in respect of section 91, may apply to the Court for a remedy under this Part.
77. (1) Quiconque a saisi le commissaire d’une plainte visant une obligation ou un droit prévus aux articles 4 à 7 et 10 à 13 ou aux parties IV, V, ou VII, ou fondée sur l’article 91, peut former un recours devant le tribunal sous le régime de la présente partie.
[24] Section 76 specifies that the Federal Court has jurisdiction to hear this application.
[25] After the Commissioner’s report was filed, the applicants made this application.
[26] Subsection 77(4) of the OLA gives the Court jurisdiction to grant a remedy.
(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.
(4) Le tribunal peut, s’il estime qu’une institution fédérale ne s’est pas conformée à la présente loi, accorder la réparation qu’il estime convenable et juste eu égard aux circonstances.
[27] Under subsection 78(1) of the OLA, the Commissioner has the power to apply to the Court for a remedy after carrying out an investigation on a complaint. The Commissioner may also apply for leave to intervene in proceedings (subsection 78(3)). In this case, the Commissioner applied for, and was granted, intervener status.
[28] In Forum des Maires de la Péninsule Acadienne v Canada (Canadian Food Inspection Agency), 2004 FCA 263, [2004] 4 FCR 276 [Forum des maires],[2] the Federal Court of Appeal discussed the respective mandates of the Commissioner and the Court and the nature of the remedy provided for by section 77 of the OLA. Justice Décary, writing for the Court, made the following comments:
16 The Commissioner, it is important to keep in mind, is not a tribunal. She does not, strictly speaking, render a decision; she receives complaints, she conducts an inquiry, and she makes a report that she may accompany with recommendations (subsections 63(1), 63(3)). If the federal institution in question does not implement the report or the recommendations, the Commissioner may lodge a complaint with the Governor in Council (subsection 65(1)) and, if the latter does not take action either, the Commissioner may lodge a complaint with Parliament (subsection 65(3)). The remedy, at that level, is political.
17 However, to ensure that the Official Languages Act has some teeth, that the rights or obligations it recognizes or imposes do not remain dead letters, and that the members of the official language minorities are not condemned to unceasing battles with no guarantees at the political level alone, Parliament has created a “remedy” in the Federal Court that the Commissioner herself (section 78) or the complainant (section 77) may use. This remedy, the scope of which I will examine later, is designed to verify the merits of the complaint, not the merits of the Commissioner’s report (subsection 77(1)), and, where applicable, to secure relief that is appropriate and just in the circumstances (subsection 77(4)).
. . .
[29] In the light of the relevant enactments, I must first ascertain whether the applicants’ complaints have merit and whether Air Canada breached its duty to ensure that the applicants received services in French in accordance with Part IV of the OLA. If so, I will have to decide which remedy is appropriate and just.
III. Analysis
A. Did Air Canada breach its linguistic duties towards the applicants?
[30] The application filed by Mr. and Ms. Thibodeau initially concerned all of the complaints they filed with the Commissioner. In the course of proceedings, Air Canada admitted certain breaches and Mr. and Ms. Thibodeau withdrew some of their allegations.[3] As such, five incidents remain at issue in this case, in respect of four of which Air Canada acknowledges having breached its duty to provide services in French. These four incidents are the following:
No services in French on board flight AC8627 flying the Toronto‑Atlanta route on January 23, 2009: Air Canada acknowledges that there was no bilingual flight attendant on this flight, although it was a flight on which there was significant demand for services in French. No translation of an announcement made in English by the pilot concerning the arrival time and weather on flight AC8622 flying the Atlanta‑Toronto route on February 1, 2009: Air Canada acknowledges that the announcement should have been translated by the flight attendant (who was bilingual) because it was a flight on which there was significant demand for services in French. No services in French on board flight AC7923 flying the Charlotte‑Toronto route on May 12, 2009. Air Canada acknowledges that there was no bilingual flight attendant on this flight and that it was a flight on which there was significant demand for services in French. Announcement made in English only to passengers concerning baggage collection at the Toronto airport on May 12, 2009: Air Canada admits that this announcement should have been made in English and French because the Toronto airport is an airport where there is significant demand for services in French.
[31] Air Canada, however, denies having breached its duties with respect to the announcement made to passengers concerning a change of baggage carousel at the Ottawa airport on February 1, 2009. Air Canada denies that it was its responsibility to make those announcements and submits that the airport authority had this responsibility since the airlines did not have access to the transmission device to make those announcements themselves. That being said, Air Canada acknowledges that there is significant demand for services in French at the Ottawa airport and submits that the situation has now been corrected and that it can now make the announcements to passengers itself.
[32] The Commissioner had not admitted that complaint because he had been unable to determine, with absolute certainty, whether the airport authority or Air Canada had committed the offence. The Commissioner wrote the following in his report:
[translation]
. . .
. . . We received confirmation from Air Canada that, since the announcement reported malfunctioning equipment, it had been made by a representative of the Ottawa Airport Authority rather than by the employees at the Air Canada baggage counter. Therefore, we informed you by letter on June 16, 2009, that responsibility for this complaint was transferred to the Ottawa Airport Authority. Our investigation of this institution showed that Air Canada is responsible for announcements concerning baggage collection. In short, from the facts garnered, we cannot determine with certainty which institution committed the offence you described. However, the investigation did reveal that neither Air Canada management at this airport nor the Ottawa Airport Authority was very well versed in their respective official language responsibilities. After our involvement in this file, we asked the Air Canada manager at the Ottawa airport and the person in charge of linguistic matters at the Ottawa Airport Authority to meet in order to clarify Air Canada’s linguistic duties on airport premises.
. . .
[33] I agree with the Commissioner; given the evidence, it is not possible to decide whether or not Air Canada breached its duties when this incident occurred.
[34] However, I conclude that, in the light of Air Canada’s admissions, it did breach its duty to provide services in French four times, three times during a flight and once when making the baggage collection announcement at the Toronto airport.
[35] Having concluded that Air Canada breached its duties under the OLA, this Court must now examine its remedial power and the relief sought by the applicants.
B. What remedy is appropriate and just in the circumstances?
[36] The language of subsection 77(4) of the OLA and of subsection 24(1) of the Charter is the same language and the parties agree that the principles of interpretation applying to subsection 24(1) of the Charter may be usefully followed with regard to the scope of the Court’s power to grant a remedy under subsection 77(4) of the OLA. In Forum des maires, at paragraph 56, the Federal Court of Appeal also adopted this view.
[37] In DesRochers, above, Justice Charron reiterated as follows, at para 31, the principles that must guide the courts in their interpretation of the provisions of the OLA devoted to language rights:
Before considering the provisions at issue in the case at bar, it will be helpful to review the principles that govern the interpretation of language rights provisions. Courts are required to give language rights a liberal and purposive interpretation. This means that the relevant provisions must be construed in a manner that is consistent with the preservation and development of official language communities in Canada (R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 25). Indeed, on several occasions this Court has reaffirmed that the concept of equality in language rights matters must be given true meaning (see, for example, Beaulac, at paras. 22, 24 and 25; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 31). Substantive equality, as opposed to formal equality, is to be the norm, and the exercise of language rights is not to be considered a request for accommodation. . . .
[38] The Supreme Court of Canada has made many pronouncements on the scope and interpretation of subsection 24(1) of the Charter. In R v 974649 Ontario Inc., 2001 SCC 81, at para 18, [2001] 3 SCR 575 [Dunedin], the Supreme Court stated that subsection 24(1) of the Charter called for a broad and purposive interpretation, that it formed a vital part of the Charter and that it must be construed generously, in a manner that best ensures the attainment of its objects. The Court also noted that it was a remedial provision commanding a large and liberal interpretation and reiterated that the language of subsection 24(1) of the Charter “appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights”. The Court also emphasized the importance of interpreting subsection 24(1) so as to arrive at a full, effective and meaningful remedy. In this regard, the Court made the following remarks:
19 . . . If the Court’s past decisions concerning s. 24(1) can be reduced to a single theme, it is that s. 24(1) must be interpreted in a manner that provides a full, effective and meaningful remedy for Charter violations: Mills, supra, at pp. 881-82 (per Lamer J.), p. 953 (per McIntyre J.); Mooring, supra, at paras. 50-52 (per Major J.). As Lamer J. observed in Mills, s. 24(1) “establishes the right to a remedy as the foundation stone for the effective enforcement of Charter rights” (p. 881). Through the provision of an enforcement mechanism, s. 24(1) “above all else ensures that the Charter will be a vibrant and vigorous instrument for the protection of the rights and freedoms of Canadians” (p. 881).
20 Section 24(1)’s interpretation necessarily resonates across all Charter rights, since a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach. . . .
[39] In Doucet‑Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3 [Doucet‑Boudreau], the Supreme Court considered the nature of the remedies that are possible under subsection 24(1) of the Charter in a case where the right to education in the minority language was at issue. The trial judge had found that the government had failed to prioritize the section 23 Charter rights and had delayed complying with its duties, despite reports showing that the rate of assimilation had reached a critical level. The judge ruled that there had been a section 23 Charter violation and ordered the provincial government and the school board to make their “best efforts” to provide homogeneous French‑language school facilities and programs by certain deadlines. The judge also retained jurisdiction to receive reports on the authorities’ efforts. The dispute before the Supreme Court concerned the extent of the remedial power set forth at subsection 24(1) of the Charter.
[40] The Court gave particular attention to the meaning of the words “appropriate and just in the circumstances” and stated that the determination of an appropriate and just order “calls on the judge to exercise a discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles” (para 52). The Court refrained from articulating a detailed definition of this phrase but did set out a certain number of general, relevant factors. The Court made the following remarks:
55 First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. . . .
56 Second, an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy. As discussed above, a court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary. . . . The essential point is that the courts must not, in making orders under s. 24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.
57 Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court. It will not be appropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestly unsuited. The capacities and competence of courts can be inferred, in part, from the tasks with which they are normally charged and for which they have developed procedures and precedent.
58 Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right.
59 Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter. As such, s. 24, because of its broad language and the myriad of roles it may play in cases, should be allowed to evolve to meet the challenges and circumstances of those cases. That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case.
[41] More recently, the Supreme Court decided in Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 SCR 28 [Ward] that under subsection 24(1) of the Charter, damages could be awarded for a Charter violation.
[42] The principles set out by the Supreme Court in Doucet‑Boudreau, above, were followed by the Federal Court of Appeal with regard to the application of the OLA in Forum des maires. In that decision, the Federal Court of Appeal also stated that although the alleged violations must be assessed as of the time of the filing of the complaint, the appropriate relief under subsection 77(4) of the OLA must be determined in view of the situation at the time the case is heard. The Court may therefore take account of developments in the situation and the corrective measures that have been taken. In that regard, Justice Décary made the following remarks:
19 There are some important implications to the fact that the remedy under Part X is basically similar to an action.
20 For example, the judge hears the matter de novo and is not limited to the evidence provided during the Commissioner’s investigation. The remedy is constantly shifting in the sense that even if the merit of the complaint is determined as it existed at the time of the alleged breach, the remedy, if there is one that is appropriate and just, must be adapted to the circumstances that prevail at the time when the matter is adjudicated. The remedy will vary according to whether or not the breach continues.
[43] In the light of these principles, what, then, are the just and appropriate remedies in the case at bar? The applicants are seeking a number of remedies. First, they are seeking a declaratory judgment that Air Canada breached its duties under the OLA and violated their language rights, a letter of apology and damages. The applicants also submit that Air Canada’s breaches of its linguistic duties are systemic and they are asking the Court to take this element into account in determining an appropriate and just remedy. In that respect, they are asking the Court to make institutional orders against Air Canada and to order it to pay punitive and exemplary damages.
[44] Air Canada does not object to this Court’s rendering a declaratory judgment to the effect that it breached its language duties towards the applicants. It also consents to give the applicants a letter of apology. Indeed, the applicants and Air Canada have submitted draft letters of apology to me. However, Air Canada objects to any further remedy and denies any systemic problems.
[45] I will deal with the remedies that are in dispute.
(1) Is it appropriate and just to award damages to the applicants?
[46] Citing Ward, the applicants are seeking $5,000 for each violation for a total of $25,000.[4] They are also relying on Morten v Air Canada, 2009 CHRT 3 (available on CanLII), in which the Canadian Human Rights Tribunal awarded $10,000 for pain and suffering resulting from an act of discrimination by Air Canada.[5]
[47] Air Canada, for its part, submits that the Court’s power to award damages is limited by the Montreal Convention, which, it alleges, excludes any possibility of awarding damages for the breaches that occurred during the international flights taken by the applicants. Thus, it is submitted that the Court only has the power to award damages for the breach related to the passenger announcement at the Toronto airport.
(a) Does the Montreal Convention limit the Court’s remedial power to award damages?
[48] The Montreal Convention is an international agreement providing for a uniform liability scheme for international air carriers and users of means of international carriage by air. The Montreal Convention’s predecessor was another international agreement, the Warsaw Convention, signed by a number of countries in 1929. That agreement instituted a unified liability regime for the international carriage of passengers, baggage and cargo in lieu of the domestic law of each signatory country. Among other things, this regime subjected air carriers to a set of rules and strict liability in the event of death or bodily injury resulting from an accident occurring during international carriage, loss or theft of baggage, loss of cargo or delayed flights.
[49] The Warsaw Convention, signed by Canada, was incorporated into domestic Canadian law through the Carriage by Air Act, R.S.C., 1985, c. C‑26. That convention was then amended a few times and, in 1999, replaced by the Montreal Convention, which came into force in November 2003. The Carriage by Air Act was amended in December 2001 so that Canadian authorities could ratify and adopt the Montreal Convention, which is thus an update of the Warsaw Convention. This convention maintains the principle of a uniform liability regime for air carriers, although it changes some of the conditions thereof.
[50] Like the Warsaw Convention, the Montreal Convention sets out a limited set of circumstances which can give rise to compensation.
[51] The following provisions of the Convention are relevant:
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