Thibodeau v. Air Canada

Thibodeau v. Air Canada
Court (s) Database
Federal Court Decisions
Date
2005-08-24
Neutral citation
2005 FC 1156
File numbers
T-346-02
Notes
Reported Decision
Decision Content
Date: 20050824
Docket: T-346-02
Citation: 2005 FC 1156
Ottawa, Ontario, August 24, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MICHEL THIBODEAU
Applicant
and
AIR CANADA AND
AIR CANADA REGIONAL INC.
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES
OF CANADA
Intervener
REASONS FOR ORDER AND ORDER
[1] The applicant, who is representing himself, has filed an application for a remedy under subsection 77(1) of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA).
THE APPLICATION
[2] The applicant is essentially seeking the following relief from the Court:
[translation]
I. THE APPLICATION seeks, first of all, a DECLARATION that:
(a) Air Canada and its subsidiary company Air Canada Regional Inc. are subject to the OLA, and more particularly Part IV, the Air Canada Public Participation Act (the ACPPA), and more particularly subsection 10(1) and paragraph 10(2)(a), and the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (the Regulations);
(b) Air Canada and its subsidiary company Air Canada Regional Inc. are not complying with the language obligations under Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations;
(c) the violation of the language rights under Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations is also a violation of the rights under sections 16 and 20 of the Canadian Charter of Rights and Freedoms (the Charter);
(d) Air Canada and its subsidiary company Air Canada Regional Inc. failed to comply with their language obligations under Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations on August 14, 2000 on flight AC 1347 between Montréal and Ottawa, and thereby breached the language rights of Michel Thibodeau guaranteed by the Charter;
(e) the provisions of the OLA, the ACPPA and the Regulations prevail over the provisions of trade agreements or collective agreements and their enforcement and these agreements cannot effectively absolve Air Canada and Air Canada Regional Inc. of their language obligations under Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations;
II. THE APPLICATION further seeks a mandatory ORDER against the respondents Air Canada and Air Canada Regional Inc. requiring them, within six months of the delivery of judgment in this proceeding, or within any other period determined by the Court:
(a) to take all the necessary steps to ensure that the public can communicate with and receive available services from the respondents in French, in accordance with Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations;
(b) without limiting the generality of the foregoing statements in the preceding paragraph, to take the following steps:
(i) to ensure that the respondents have an adequate bilingual capability and take all the other necessary steps to provide services to the public in French for in-flight services on routes with a significant demand;
(ii) to ensure, in the previously stated circumstances, that steps be taken by the respondents to actively offer service to the public, for example by making an active offer of service in French, entering into communication with it or by signage, notices or documentation in accordance with Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations;
(iii) to establish adequate procedures and a system of supervision designed to quickly identify, document and quantify potential violations of language rights, which rights are set out in Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations;
(iv) to ensure that language rights, as described in Part IV of the OLA, subsection 10(1) and paragraph 10(2)(a) of the ACPPA and the Regulations, prevail over any agreement executed by the respondents and any collective agreements that involve them;
III. THE APPLICATION further seeks a REMEDY under subsection 24(1) of the Charter, subsection 77(4) of the OLA and rule 53 of the Federal Court Rules, 1998, having regard for the circumstances and in order to ensure compliance by the respondents with the Charter, the OLA, the ACPPA and the Regulations. THE APPLICATION is seeking the following RELIEF:
(a) the payment by the respondents to the applicant as damages of $25,000.00 or any other amount considered appropriate by the Court;
(b) the payment by the respondents to the applicant as punitive and exemplary damages of $500,000.00 or any other amount considered appropriate by the Court;
(c) any further RELIEF that the Court considers appropriate and just to order;
IV. THE APPLICATION further seeks a mandatory ORDER against the respondents, Air Canada and Air Canada Regional Inc., requiring them to give the applicant, Michel Thibodeau, a letter of apology, which shall be posted by the respondents in all the Air Canada and Air Canada Regional Inc. customer service counters. This letter should be visible to the public, easily readable, posted for a duration of two or more weeks and include, inter alia, the following:
(a) An acknowledgement that Air Canada and Air Canada Regional Inc. are legally required to provide services in French in accordance with the provisions of Part IV of the OLA, the ACPPA and the Regulations;
(b) An acknowledgement that Air Canada and Air Canada Regional Inc. have breached their duty to provide services in French to Francophone passengers;
(c) Apologies to Michel Thibodeau for the lack of service in French and for the lack of respect on the part of Air Canada and Air Canada Regional Inc. associated with the incident of August 14, 2000; [emphasis in original]
ISSUES
[3] The issues are the following:
1. Does section 10 of the Air Canada Public Participation Act, R.S.C. 1985, c. 35 (4th Supp.) (ACPPA), as amended in July 2000, impose an obligation of result on Air Canada in respect of its subsidiaries instead of an obligation of means?
2. (a) What is the admissible evidence in this case?
(b) In light of the evidence, is there a breach of the applicant's language rights?
3. More particularly, but without limitation:
(a) Does the Canadian Charter of Rights and Freedoms apply to Air Canada and Air Canada Regional Inc.?
(b) Having regard to section 10 of the ACPPA, as amended, does the applicant have an independent remedy against Air Canada Regional Inc.?
(c) Having regard to the circumstances, does the applicant have standing to raise legal issues and remedies that are not specific to his personal legal situation?
(d) Does section 79 of the OLA prevail over the other federal statutes?
(e) Is section 25 of the OLA applicable in the circumstances?
4. In view of the legal situation of the applicant and the respondents, particularly in the wake of the orders issued under the Companies' Creditors Arrangements Act, R.S.C. 1985, c. C-36 (CCAA), is the applicant entitled to relief other than that already provided under the CCAA?
5. Do the provisions of the OLA, the ACPPA and the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 prevail over the provisions of trade agreements or collective agreements?
FACTUAL CONTEXT
[4] On August 14, 2000, the applicant and his wife were passengers on board flight AC 1347 of Air Ontario departing from Montréal for Ottawa.
[5] Air Ontario is a subsidiary of Air Canada and, since January 1, 2001, has been legally part of the merged unit known as Air Canada Regional Inc.
[6] The only flight attendant on duty (Marne Guenther) on flight AC 1347 was a unilingual Anglophone. She asked the applicant and his wife in English if they would be kind enough to give up their seats to accommodate a couple with a baby. They agreed to do so.
[7] During the snack service, the applicant spoke to Ms. Guenther in French. The flight attendant replied: "I apologize that I do not speak French. Would you like anything to drink?" (flight attendant's version). The applicant's version: "Excuse me, I do not speak French."
[8] The versions differ regarding the events that followed. The applicant submits that he did not use a threatening tone but admits that he was upset that he could not obtain service in French.
[9] The flight attendant and other witnesses who were present, on the other hand, allege that the applicant, through the tone of his voice, intimidated some passengers, including Ms. Guenther.
[10] Another flight attendant (Ms. Lawn), who was in uniform but not on duty aboard flight AC 1347, then intervened to help Ms. Guenther and serve as her interpreter with the applicant.
[11] Dissatisfied, the applicant asked to speak to the captain. The flight was a short one and the plane had already begun its descent. Ms. Lawn explained to the applicant that it would be impossible to speak to the captain since he did not speak French.
[12] Upon his arrival at the Ottawa airport, two officers of the Ottawa-Carleton police force boarded the plane to meet with the applicant in response to a call from Air Ontario. Since the police intervention amounted to nothing more than an on-site intervention and necessitated no action on their part, there was no written report.
[13] In their oral submissions, the respondents state that they did not want to label the applicant as having been under the influence of "air rage".
[14] On August 16, 2000, the applicant filed a written complaint with the Commissioner of Official Languages, Air Canada and Air Ontario concerning the lack of services in French on board flight AC 1347.
[15] The applicant received an acknowledgement of receipt from the office of the Commissioner of Official Languages and Air Ontario. However, he was informed by Air Canada, in a telephone conversation, that it would not respond to his complaint as the matter concerned only Air Ontario, an independent company of Air Canada.
[16] A report of the Office of the Commissioner of Official Languages was delivered to the applicant in January 2002 and the findings may be summarized as follows:
- The flight attendant on duty was unable to provide service in French to the passengers, despite the fact that this flight services a route with a significant demand for services in both official languages, pursuant to paragraph 7(4)(c) of the Regulations.
- Air Canada and Air Ontario did not fulfill their obligations under subsection 10(2) of the ACPPA and Part IV of the OLA.
- Since the ACPPA did not give the Air Canada regional carriers who operate in Eastern Canada some time in which to comply with their obligations, as was provided for the Western subsidiaries (subsection 10(5) of the ACPPA), Air Canada's obligations took effect immediately upon the coming into force of the ACPPA amendments, on July 5, 2000.
- The Commissioner's analysis indicates that over the last ten years Air Canada's efforts to fulfill its obligations under the OLA have had essentially no effect since there has been no appreciable improvement in service in French.
- The OLA is quasi-constitutional legislation and as such the public's rights are not negotiable. The respondents should not be required to negotiate the public's language rights with the union. They must persuade the union representatives that the seniority provisions cannot contravene the duty to provide services in both official languages on designated flights. They must clearly state that the assignment of bilingual flight attendants to designated bilingual flights is not negotiable.
[17] The applicant subsequently filed this application. On April 1, 2003, Air Canada was placed under the protection of the CCAA. Mr. Justice Farley of the Superior Court of Ontario granted Air Canada and some of its subsidiaries protection against their creditors so they could proceed in an orderly way with a restructuring of their activities.
[18] On April 9, 2003, the Commissioner of Official Languages (the Commissioner) was given leave to intervene in this proceeding with respect to the issue of interpretation of section 10 of the ACPPA.
[19] On October 5, 2003, Mr. Justice Noël of this Court made an order staying these proceedings until Mr. Justice Farley's order to stay was definitively lifted.
[20] On September 18, 2003, Farley J. made a "Claims Procedure Order" (CPO) establishing the procedure to be taken in making a claim under the ACPPA on behalf of unsecured creditors.
[21] Observing the problem that exists concerning the appropriate forum for determining a claim under the OLA, Noël J. issued a direction in which he requested that the parties ask Farley J. which forum (the CPO or the Federal Court) would be the most appropriate for making determinations arising out of this case. Farley J. determined that the CPO is the appropriate forum for dealing with the monetary portion of the claim, but that the non-monetary aspects should be heard by the Federal Court.
[22] On June 2, 2004, Noël J., taking into consideration the determination by Farley J., made a second order dismissing the request to lift the order to stay, pending the issuance of the final order of Farley J. or upon application by one of the parties should the circumstances so warrant.
[23] Mr. Thibodeau's claim was rejected by the Air Canada monitor and he appealed that decision. That appeal was heard by Mr. Boudreault (a retired former judge) on the basis of the documentation on file under the CPO. He concluded that Air Canada had failed to comply with the applicant's language rights under the OLA and assessed the damages at $1,175 including interest, leaving the Federal Court the discretion to determine the costs.
[24] Mr. Thibodeau appealed this decision to the Superior Court of Ontario alleging that the value of the award was unreasonable and ought to be increased. Mr. Justice Rouleau dismissed the applicant's appeal and upheld Mr. Boudreault's decision.
[25] On February 15, 2005, Noël J. made two orders - the first, ordering that the stay of proceedings be lifted to allow the applicant to proceed to the hearing of his case, and the second listing the issues to be decided by this Court.
ANALYSIS
1. Does section 10 of the ACPPA, as amended in July 2000, impose an obligation of result on Air Canada in respect of its subsidiaries instead of an obligation of means?
[26] Air Canada was legally constituted by Parliament in 1937 under the name "Trans-Canada Airlines". The name "Air Canada" replaced "Trans-Canada Airlines" pursuant to legislation enacted in 1964.
[27] The Canadian government decided to privatize the airline. This project materialized through the enactment of the ACPPA. The airline, previously a Crown corporation, now became an ordinary company whose activities were subject to the Canada Business Corporations Act, R.S.C. 1985, c. C-44.
[28] Under section 10 of the ACPPA, the OLA applies to Air Canada. It is clear that this company is under a statutory duty to comply with the OLA and the Regulations thereunder.
[29] Because of differences of opinion concerning the extent of Air Canada's linguistic obligations in respect of its subsidiaries, Parliament decided to amend the ACPPA. Section 10 of the ACPPA now expressly provides, effective July 5, 2000, that Air Canada must ensure that its subsidiaries comply with Part IV of the OLA. In other words, the ACPPA provides that Air Canada customers may communicate with and be served in the official language of their choice when they use the services of Air Canada subsidiaries (subsection 10(2)).
[30] On July 6, 2000, Air Canada sent a message to all staff members of the regional carriers informing them of their official languages obligations under the amendments to the ACPPA. This message clearly stated that, effective July 2000, Air Ontario was required by law to provide its in-flight services in both official languages [translation] "on all flights departing Montréal, Ottawa or Moncton, flights to those cities or flights that include a transit in those cities and on all flights within Ontario, Quebec and New Brunswick . . .".
[31] On November 2, 2000, in a letter from Air Ontario, Manon Stuart, OLA Implementation Coordinator for Air Canada regional airlines, confirmed that Air Ontario had been subject to the OLA since July 5, 2000.
[32] It is undeniable, therefore, that the OLA applies to Air Canada and to all of its subsidiaries in respect of communications with travellers. But what is the extent of this obligation? Is it an obligation of result as the applicant and the intervener contend, or is it an obligation of means as the respondents submit?
[33] It is important to assess the intensity of the obligation under subsection 10(2) of the ACPPA. The classification of duties according to their intensity is a doctrinal classification. Parliament does not define this intensity; instead, it describes the extent of the obligation. Classification is an important means in practical terms for determining the evidence that the applicant must adduce and the grounds of exoneration available to the respondents.
[34] Jean-Louis Baudouin and Pierre-Gabriel Jobin define the obligation of means and of result as follows:
[translation]
Obligation of means - The obligation of means is the obligation for the satisfaction of which the debtor is required to act with prudence and diligence with a view to obtaining the agreed result, using all reasonable means, but without guaranteeing the creditor that the result will be achieved (p. 32)
Obligation of result - The obligation of result is the obligation for the satisfaction of which the debtor is required to provide the creditor with a specific and defined result (p. 34)
Baudouin, Jean Louis and Pierre-Gabriel Jobin, Les Obligations, 5th ed., Les éditions Yvon Blais Inc., Cowansville, Quebec, 1998, 1217 pages.
[35] In the case of an obligation of means, the respondent will be liable only if it has not exercised due diligence and care in respect of its obligation. 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 (Baudouin, supra, pages 36-37).
[36] A number of factors must be considered in analyzing the intensity of the duties under section 10 of the ACPPA: the text of section 10 of the ACPPA, the context of the Act and the intention of Parliament when it enacted the OLA and the ACPPA (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, page 41, paragraph 21).
Current meaning of the words
[37] The current meaning of the words focuses on the wording of the section in question. This method of interpretation presumes that Parliament chose certain words the use and meaning of which is that of the general population. The text of section 10 of the ACPPA reads as follows (since July 5, 2000, through the coming into force of section 18 of the Act to amend the Canada Transportation Act, the Competition Act, the Competition Tribunal Act and the Air Canada Public Participation Act and to amend another Act in consequence, S.C. 2000, c. 15 (AAACPPA)):
Official Languages Act
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.
Loi sur les langues officielles
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.Subsidiary body corporate
(3) For the purposes of this section, a body corporate is a subsidiary of the Corporation if
(a) it is controlled by
(i) the Corporation,
(ii) the Corporation and one or more bodies corporate each of which is controlled by the Corporation, or
(iii) two or more bodies corporate each of which is controlled by the Corporation; or
(b) it is a subsidiary of a body corporate that is a subsidiary of the Corporation.
Filiales
(3) Pour l'application du présent article, une personne morale est la filiale de la Société si, selon le cas :
a) elle est contrôlée :
(i) soit par la Société,
(ii) soit par la Société et une ou plusieurs personnes morales elles-mêmes contrôlées par celle-ci,
(iii) soit par des personnes morales elles-mêmes contrôlées par la Société;
b) elle est la filiale d'une filiale de la Société.
Control
(4) For the purposes of subsection (3), a body corporate is controlled by another body corporate if
(a) securities of the body corporate to which are attached more than 50% of the votes that may be cast to elect directors of the body corporate are held, other than by way of security only, by or for the benefit of the other body corporate; and
(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the body corporate.
Contrôle
(4) Pour l'application du paragraphe (3), une personne morale est contrôlée par une autre personne morale si :
a) des valeurs mobilières de la personne morale conférant plus de cinquante pour cent des votes qui peuvent être exercés lors de l'élection des administrateurs de la personne morale en question sont détenues, autrement qu'à titre de garantie uniquement, par cette autre personne morale ou pour son bénéfice;
b) les votes que comportent ces valeurs mobilières sont suffisants, en supposant leur exercice, pour élire une majorité des administrateurs de la personne morale.
Application of subsection (2)
*(5) Subsection (2) applies
(a) in respect of air services, including incidental services, provided or made available by a subsidiary of the Corporation at a facility or office in Manitoba, British Columbia, Saskatchewan, Alberta, the Yukon Territory, the Northwest Territories or Nunavut or on a route wholly within those provinces, one year after that subsection comes into force if it had been a subsidiary of the Corporation on that coming into force; and(b) in respect of a person that becomes a subsidiary of the Corporation only after that subsection comes into force, or in respect of Canadian Airlines International Ltd. or Canadian Regional Airlines Ltd. if that airline becomes a subsidiary of the Corporation before that subsection comes into force, three years after the person or airline becomes a subsidiary.
*[Note: Subsection 10(2) in force July 5, 2000, see SI/2000-59.]
Application
*(5) Le paragraphe (2) s'applique :
a) un an après son entrée en vigueur, à l'égard des services aériens, y compris les services connexes, offerts soit à un bureau au Manitoba, en Colombie-Britannique, en Saskatchewan, en Alberta, au Yukon, dans les Territoires du Nord-Ouest ou au Nunavut, soit relativement à un trajet dans ces provinces, par une filiale de la Société qui avait ce statut lors de cette entrée en vigueur;
b) à l'égard des Lignes aériennes Canadien International ltée et des Lignes aériennes Canadien Régional ltée, dans le cas où celles-ci deviennent des filiales de la Société avant cette entrée en vigueur et à l'égard de la personne qui ne devient une filiale de la Société qu'après cette entrée en vigueur, trois ans après l'acquisition par elles du statut de filiale.
*[Note : Paragraphe 10(2) en vigueur le 5 juillet 2000, voir TR/2000-59.]
Extension
(6) The Governor in Council may, by order made on the recommendation of the Minister of Transport, increase the three years referred to in paragraph (5)(b) to a maximum of four years in respect of a route served, or an office or facility from which service is provided, by a subsidiary.
Prorogation
(6) Le gouverneur en conseil peut, par décret pris sur recommandation du ministre des Transports, proroger le délai de trois ans visé à l'alinéa (5)b) d'au plus un an à l'égard soit d'un trajet emprunté par une filiale, soit d'un bureau où elle offre des services.
Duties of replacements
(7) If Canadian Airlines International Ltd., Canadian Regional Airlines Ltd. or a subsidiary of the Corporation replaces the Corporation or one of its subsidiaries in providing an air service, including incidental services, that the Corporation or the subsidiary provided on or after December 21, 1999, the Corporation has the duty to ensure that any of the customers of the person who replaces the Corporation or the subsidiary can communicate with that person in respect of those services, and obtain those services from that person, in either official language in any case where those services, if provided by the Corporation or the subsidiary, would be required under Part IV of the Official Languages Act or under subsection (2) to be provided in either official language.
Obligation en cas de substitution
(7) Si les Lignes aériennes Canadien International ltée, les Lignes aériennes Canadien Régional ltée ou une filiale de la Société offrent à la place de la Société ou de l'une de ses filiales un service aérien, y compris les services connexes, que celles-ci offraient le 21 décembre 1999 ou par la suite, la Société est tenue de veiller à ce que les services offerts par la personne à ses clients à sa place ou à la place de l'une de ses filiales le soient, et à ce qu'ils puissent communiquer avec la personne relativement à ces services, dans l'une ou l'autre des langues officielles dans le cas où, elle-même ou l'une de ses filiales offrant les services, elle serait tenue, au titre de la partie IV de la Loi sur les langues officielles ou du paragraphe (2), à une telle obligation.
For greater certainty
(8) For greater certainty, subsections (2) and (7) do not affect any duty that the Corporation may have under section 25 of the Official Languages Act.
Article 25 de la Loi sur les langues officielles
(8) Il demeure entendu que les paragraphes (2) et (7) ne portent pas atteinte à l'obligation qui incombe à la Société au titre de l'article 25 de la Loi sur les langues officielles.
Deemed duty
(9) For the purposes of Parts VIII, IX and X of the Official Languages Act, the duties referred to in subsections (2) and (7) are deemed to be duties under Part IV of that Act.
Assimilation
(9) Pour l'application des parties VIII, IX et X de la Loi sur les langues officielles, les obligations prévues aux paragraphes (2) et (7) sont réputées être des obligations prévues à la partie IV de cette loi.
[38] Subsection 10(2) provides that Air Canada has a duty to ensure that the customers of its subsidiaries can communicate and obtain services in either of the official languages. The English wording is in my opinion stronger than the language in the French version. It states that Air Canada "has the duty to ensure that any subsidiary's customers can communicate . . . and obtain those services from the subsidiary in either official language . . .".
[39] To establish that it has only an obligation of means, Air Canada compares the wording of subsection 10(2) of the ACPPA with the wording of subsections 705.43(1) and (2) of the Canadian Aviation Regulations, SOR/96-443, enacted pursuant to the Aeronautics Act, R.S.C. 1985, c. A-2. It states that the resulting obligation under these regulations is clearly an obligation of result because of the words "shall ensure" (doit s'assurer). It adds that the obligation under the ACPPA cannot be one of result since subsection 10(2) uses radically different language, "duty to ensure" (tenue de veiller).
[40] In my opinion, the respondents ought instead to conduct a comparative study of the words used in the OLA if they wish to find out how to interpret their duties under the ACPPA. The Canadian Aviation Regulations are not regulations based on a quasi-constitutional enactment. Subsection 10(2) of the ACPPA refers to a quasi-constitutional enactment, the OLA. Consequently, the words in subsection 10(2) of the ACPPA must be construed in light of the language used in the OLA.
[41] In terms of communication with and services provided to the public, the OLA provides, in sections 23 and 25, that "every federal institution . . . has the duty" (in French, "qu'il incombe aux institutions fédérales" - "incombe" meaning that federal institutions "ont la responsabilité ou la charge de" [translation] "are responsible for", Le Nouveau Petit Robert, 1993). I would liken this obligation to the one in subsection 10(2) of the ACPPA: "has the duty to ensure" (est tenue de veiller à . . .). The Federal Court has previously interpreted section 25 of the OLA as imposing an obligation of result on these institutions. In Quigley v. Canada (House of Commons), [2003] 1 F.C. 132, it was held that the House of Commons had breached its duties under the OLA in failing to ensure that the debates are made available in both official languages.
Context of the OLA
[42] Section 82 provides that in the event of any inconsistency between Parts I to V of the OLA and any other Act of Parliament or regulation thereunder, other than the Canadian Human Rights Act and the regulations thereunder, these Parts prevail to the extent of the inconsistency.
[43] Subsection 10(9) of the ACPPA, as amended, specifies that Air Canada's duties under subsections (2) and (7) are deemed to be the same as the duties of federal institutions under Part IV of the OLA (Communications with and services to the public). By explicitly subjecting Air Canada to the OLA through section 10 of the ACPPA, Parliament has compared Air Canada, for the purpose of this part of this Act, to a federal institution. That being said, Air Canada has the same duties as those incumbent on federal institutions, namely, to ensure that the services it provides itself or through its subsidiaries are consistent with the OLA.
Parliament's intention
[44] In R. v. Beaulac, [1999] 1 S.C.R. 768, at paragraph 15, the Supreme Court of Canada states:
In 1975, when this Court confirmed that language guarantees in s. 133 of the Constitution Act, 1867 were minimal provisions and did not preclude the extension of language rights by either the federal or the provincial legislatures (Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, at pp. 192-93), a purposive and liberal approach to the interpretation of language rights was adopted. . . .
It was in this context that the OLA was enacted by Parliament. In fact, Part IV of the OLA is primarily intended to guarantee that federal institutions will implement measures that will enable Canadians to exercise fully the rights conferred on them by the Constitution, namely, to communicate with or receive services from the institutions of Parliament and the government of Canada in either of the official languages.
[45] Section 2 of the OLA, which serves as an interpretive tool, provides that the purpose of the Act is to advance the equality of status and use of the English and French languages. In Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, at paragraph 23, the Supreme Court confirmed what the Federal Court, in Canada (Attorney General) v. Viola, [1991] 1 F.C. 373, had correctly held, that the OLA is not an ordinary statute:
It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in subsections 16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in section 2 and its taking precedence over other statutes in accordance with subsection 82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects "certain basic goals of our society" and must be so interpreted "as to advance the broad policy considerations underlying it." [Emphasis added.]
[46] In light of the foregoing, the quasi-constitutional nature is clear. That is why the Act must be interpreted having regard to the constitutional guarantees and must be given such broad and liberal interpretation as will best ensure that these guarantees are attained (Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd edition (Scarborough, Carswell, 2000), p. 500).
[47] Section 16 of the Charter confirms that the substantive equality of language rights and section 2 of the OLA has the same effect. In Beaulac, supra, the Supreme Court of Canada ruled in paragraph 24 that "the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation." This principle of substantive equality between the two official languages means, for example, that language rights require government action for their implementation and accordingly create positive obligations for the State (Beaulac, supra, at paragraph 20).
[48] Since the rights arising under the OLA are comparable to a constitutional guarantee, and since subsection 10(9) of the ACPPA provides that Air Canada's duty in subsection 10(2) is deemed to be a duty under Part IV of the OLA for the purposes of applying Parts VIII, IX and X of the OLA, I consider that this obligation is one of result.
[49] The parameters of this obligation of result are found in section 22 of the OLA, which stipulates that this obligation exists within the National Capital Region or wherever, in Canada or elsewhere, there is a significant demand. Subsection 23(1) provides:
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.
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.
[50] "Significant demand" has been defined in subsection 7(1) and paragraph 7(4)(c) of the Regulations:
7. (1) For the purposes of subsection 23(1) of the Act, there is significant demand for services to the travelling public, other than air traffic control services and related advisory services, from an office or facility of a federal institution in an official language where the facility is an airport, railway station or ferry terminal or the office is located at an airport, railway station or ferry terminal and at that airport, railway station or ferry terminal over a year at least 5 per cent of the demand from the public for services is in that language.
7. (1) 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, à l'exclusion des services de contrôle de la circulation aérienne et des services consultatifs connexes, lorsque le bureau est un aéroport, une gare ferroviaire ou de traversiers ou un bureau situé dans l'un de ces lieux et qu'au moins cinq pour cent de la demande de services faite par le public à cet aéroport ou à cette gare, au cours d'une année, est dans cette langue.
. . .
[...]7. (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
7. (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) the office or facility provides those services on board an aircraft
c) le bureau offre les services à bord d'un aéronef :
(i) on a route that starts, has an immediate 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,
(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) 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
(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) on a route that starts and finishes at airports located in the 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;
(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;
2. (a) What is the admissible evidence in this case?
[51] The respondents challenge the admissibility of the following exhibits:
1. Exhibit TM-15: Report of the Standing Joint Committee on Official Languages, "Air Canada: Good Intentions are Not Enough" (February 2002)
2. Exhibit TM-16: Summary and analysis of the proceedings of the Standing Joint Committee on Official Languages on the implementation of the Official Languages Act in Air Canada, "Air Canada and the implementation of the Official Languages Act" (September 2001)
3. Exhibit TM-17: Affidavit of Michel Robichaud
4. Exhibit TM-14: Report of the Commissioner of Official Languages, "Rapport d'enquête concernant l'absence de service en français sur le vol AC 1347 d'Air Ontario Montréal - Ottawa"
Exhibits TM-15, TM-16
[52] The respondents allege that exhibits TM-15 and TM-16 are inadmissible because the respondents are legally unable to question the proceedings of the Standing Joint Committee on Official Languages or to challenge the findings in these reports. Consequently, they contend, it would be contrary to the traditional rules of evidence to admit them. In support of their contentions, they submit