Thibodeau v. Greater Toronto Airports Authority

Thibodeau v. Greater Toronto Airports Authority
Court (s) Database
Federal Court Decisions
Date
2024-02-20
Neutral citation
2024 FC 274
File numbers
T-2013-19, T-534-21
Notes
A correction was made on November 1 2024
Decision Content
Date: 20240220
Dockets: T-2013-19
T-534-21
Citation: 2024 FC 274
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 20, 2024
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN:
MICHEL THIBODEAU
Applicant
and
GREATER TORONTO AIRPORTS AUTHORITY
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES
Intervener
JUDGMENT AND REASONS
I. Overview
[1] The Greater Toronto Airports Authority [GTAA] is a non-profit corporation that operates Toronto Pearson International Airport [the Airport], among other things. The applicant, Michel Thibodeau, who is not represented by counsel, is applying for remedies under subsection 77(1) of the Official Languages Act, RSC 1985, c 31 (4th Supp) [the OLA], against the GTAA, alleging that it has failed to meet its language duties under the OLA and has therefore violated the language rights associated with those duties. The alleged violations are related to three complaints that he made to the Commissioner of Official Languages [the Commissioner] under section 55 of the OLA, namely one complaint in docket T-534-21 and two complaints in docket T-2013-19, with both matters being heard in succession on the same day. The Commissioner prepared investigation reports and made recommendations in relation to each of the complaints. In addition, in an order dated November 26, 2020, the Commissioner was granted intervener status in docket T-2013-19 only. The Commissioner did not intend to take a position on the merits of Mr. Thibodeau’s application; rather, the Commissioner’s objective was to present to the Court the principles of interpretation that apply to the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 [the Regulations], in order to clearly delineate the scope of third-party contractor services under subsection 12(1) of the Regulations and the scope of airport authorities’ duties.
[2] Mr. Thibodeau is seeking remedies under subsection 77(4) of the OLA, namely, public interest standing, a public statement that the GTAA violated his language rights, and a formal letter of apology. He is also asking the Court to award him $4,500 in damages ($1,500 for each violation) and $5,000 in costs. I will deal with both applications at the same time because a number of issues are common to both. For the reasons that follow, I will allow Mr. Thibodeau’s applications in part and grant remedies in this case.
II. Complaints
T-534-21—Press Release complaint
[3] The facts in docket T-534-21 are not in dispute. The GTAA owns and operates the torontopearson.com website [the Website], and it has acknowledged that Mr. Thibodeau’s language rights were violated in the case of the complaint regarding a press release entitled “Toronto Pearson to welcome 9.8M passengers this summer” [the Press Release] dated June 28, 2017, and posted the following day on the Website without being simultaneously posted in French, i.e., the Press Release was not available in both official languages. Mr. Thibodeau’s complaint to the Commissioner on July 14, 2017 [the Press Release complaint], was communicated to the GTAA on July 18, 2017, and the GTAA corrected the situation and published the French version of the Press Release six days later, on July 24, 2017.
[4] The Commissioner filed his final investigation report on June 11, 2018, finding that the Press Release complaint was well founded and that the GTAA had failed to meet its language duties under Part IV of the OLA. However, the Commissioner noted that the GTAA [translation] “[had] made progress with regard to press releases being published in both official languages on the website” and recommended that the GTAA review its communications policies within three months of the date of the final investigation report to ensure that press releases on the Website were available simultaneously in both official languages.
[5] The final follow-up report, filed by the Commissioner on January 26, 2021, states that the GTAA responded to the recommendation by claiming, but not showing, that the delay in issuing the French-language Press Release was the result of exceptional circumstances rather than any lack of knowledge or understanding of its language duties, or any systemic problems in meeting those duties. The GTAA stated that, normally, press releases for the public are issued simultaneously in both official languages, and the English and French versions of press releases are posted simultaneously on the Website. The GTAA acknowledged that it did not have written policies for everything it did; however, it asserted that it ensured that employees drafting and issuing press releases had the knowledge required to carry out their day-to-day duties, that employees were aware that press releases had to be issued in both French and English, and that both French and English versions were required before a press release could be posted on the Website.
[6] However, the Commissioner noted that the recommendation in his final investigation report had not been implemented and that the GTAA had failed to provide any documentation showing that it had reviewed its policies to ensure that communications to the public, including press releases, were posted simultaneously in both official languages on the Website. Moreover, the Commissioner noted that the GTAA had no formal written policy on issuing communications to the public and that, although the GTAA had stated that its press releases were issued in both official languages and that the delay in issuing the press release referred to in the initial complaint was the result of exceptional circumstances, the documentation provided by Mr. Thibodeau combined with the Commissioner’s investigations showed that the problem was ongoing. Consequently, the Commissioner asked the GTAA to act on the recommendation immediately, by adopting a communications policy and communicating it to communications staff. The Commissioner believed that an official communication policy, if enforced, would enable the GTAA to prevent future incidents similar to the one described in the complaint.
[7] As mentioned, the GTAA has acknowledged that, under the OLA, it must ensure that its airport-related press releases are available in both official languages, and it states that policies and procedures, particularly with regard to the translation of press releases, have been implemented to this end. The GTAA submits before to me, as it had advised the Commissioner, that the issuance of the Press Release in English without the French version was merely an oversight—perhaps the result of exceptional circumstances, rather than a lack of knowledge or understanding of its language duties—and that the oversight was promptly corrected once brought to the GTAA’s attention. Since the GTAA has acknowledged that Mr. Thibodeau’s language rights were violated in the case of the Press Release complaint, the issue before me concerns the remedies that should be granted to Mr. Thibodeau, in particular the nature of those remedies, including the quantum of any damages.
[8] However, Mr. Thibodeau’s present application specifically seeks a declaration that the GTAA failed to meet its language duties under the OLA, thereby violating language rights not only in relation to the Press Release but also in relation to a number of press releases that were not available in French on the Toronto Pearson International Airport website in recent years. I note that the evidence in the record includes complaints made by Mr. Thibodeau to the Commissioner in January 2021, after the present application had been filed, regarding other alleged violations of the OLA in relation to GTAA press releases to the public issued in 2017, 2018, 2019 and 2020. However, a number of these new complaints are still pending, with the Commissioner’s final investigation report still outstanding at the time of the hearing before me; in fact, the GTAA asserted before me that, apart from the complaints that form the basis of docket T-2013-19, it had only recently become aware of the new complaints of possible previous violations. For the purposes of the present application and the declaratory relief by sought by Mr. Thibodeau, it does not seem appropriate for me to consider the purported previous violations of the OLA that are still under investigation. The GTAA does not, in fact, object to any declaration by the Court of violations in respect of the Press Release complaint, but it does object to any general declaration in respect of purported previous violations, given that no such violations are at issue before me.
[9] That said, the GTAA submits that Mr. Thibodeau is not entitled to damages because they would be neither fair nor appropriate, particularly since Mr. Thibodeau failed to demonstrate that the alleged violations of his language rights resulted in any actual harm, and that the complaint is simply part of Mr. Thibodeau’s longstanding crusade against federal institutions, in which he actively seeks out potential language violations for personal gain. I will consider these issues below.
T-2013-19—CIBC and Booster Juice complaints
[10] The two complaints in docket T-2013-19 relate to the GTAA’s duties with regard to services provided by third-party contractors, under subsection 12(1) of the Regulations.
A. The CIBC complaint
[11] The incident in question reportedly occurred on February 3, 2018, and Mr. Thibodeau’s complaint to the Commissioner against the Airport is dated March 3, 2018. Mr. Thibodeau’s complaint with respect to CIBC [the CIBC complaint] regards unilingual English or predominantly English signage on CIBC’s automated teller machines [ATMs] and in CIBC’s advertising at the Airport. Specifically, the CIBC complaint is composed of three parts:
a)ATM signage—Signage is only in English or predominantly in English—the photographs provided by Mr. Thibodeau show signs on ATMs such as “Foreign Cash”, “CAD and USD Cash” and “Multiple Currencies available here” with no French equivalents.
b)Branch advertising—Signage at CIBC banking centres is only in English or predominantly in English, for example, “How can we help you?” signs and taglines in big letters, advertisements and taglines such as “We’re here for all your banking needs”, and posters bearing the taglines “Bank before you fly”, “Do any last minute banking”, “Branch on your right” and “Relax and recharge in our branch” with no French equivalents.
c)Travel insurance advertising—Signage for CIBC travel insurance is only in English or predominantly in English, for example, “Purchase travel insurance” with no French equivalent.
[12] The Commissioner filed his final investigation report in October 2019; he determined that the CIBC branches located at the airport provided services to the travelling public pursuant to a contract within the meaning of paragraph 12(1)(a) of the Regulations, including travel insurance and foreign exchange services, and that the ATM signage and CIBC advertisements complained of were in English only. Consequently, the GTAA had violated Part IV of the OLA, and Mr. Thibodeau’s complaint was well founded. The Commissioner noted that these services, as well as ATM signage, must be provided or made available to the travelling public in both official languages, in accordance with subsection 23(2) of the OLA, and that advertisements and other signage related to these services must also be in both official languages, in accordance with subsection 12(3) of the Regulations.
[13] In response to the preliminary investigation report, the GTAA stated that it was advising CIBC to ensure that signage and print and electronic advertising for the services covered by the Regulations are in both official languages, and that it was currently in discussions with CIBC about changes to the sale and purchase of currency where in-person service is offered in English only. Although CIBC’s ATMs at the airport are accessible in both English and French, the GTAA confirmed that the signage on some ATMs was in English only, and that these ATMs would be updated this year with bilingual signage. However, regarding the sale of travel insurance by CIBC, the GTAA simply noted that, since this service was not provided in person at airport branches, customers had to contact CIBC by telephone to purchase insurance. As a result, English-speaking and French-speaking customers are treated equally, as they must all access the service by telephone; the telephone service is bilingual.
[14] The Commissioner commended the GTAA for its efforts in ensuring that signage and advertising at CIBC branches located at the airport were in both official languages. However, it recommended that the GTAA take the necessary steps within six months of the date of the final investigation report to ensure that this signage and these advertisements, as well as those on the ATMs, are of equal quality in both official languages.
[15] The GTAA argues before me that, in the present case, it concedes that there were two specific instances in which Mr. Thibodeau’s language rights were violated, namely the ATM signage and the advertising related to the sale of travel insurance. In both cases, however, the GTAA claims to have acted promptly to ensure that CIBC made the necessary corrections.
[16] As for the rest, these are not violations of the OLA. The GTAA asserts that the general branch advertisements all relate to traditional banking services, rather than to one of the services prescribed in subsection 12(1) of the Regulations; general banking services are not services covered by the Regulations and are therefore not subject to bilingualism requirements. According to the GTAA, there is nothing in the OLA or the Regulations to support the fact that advertising or communications relating to banking services or products that are not designated as services prescribed by regulation are subject to bilingualism obligations. According to the GTAA, Mr. Thibodeau claims that, since CIBC offers certain services covered by the Regulations (ATMs, foreign exchange services and travel insurance), all its services—including banking services—are services prescribed by regulation. Such reasoning, argues the GTAA, is not consistent with the Regulations, and only those services that Parliament expressly lists as falling within the scope of a federal institution’s language obligations should give rise to such obligations.
[17] In any event, the GTAA reiterates that Mr. Thibodeau is not entitled to damages, as they are neither just nor appropriate, especially since, as was the case with the complaint regarding the press release, Mr. Thibodeau has failed to demonstrate that the alleged violations of his language rights have resulted in actual harm. This is also because the complaints are part of Mr. Thibodeau’s longstanding crusade against federal institutions, in particular airport authorities, whereby he actively seeks out potential violations of his language rights for personal financial gain.
B. The Booster Juice complaint
[18] The incident in question reportedly occurred on January 26, 2019, and Mr. Thibodeau’s complaint to the Commissioner against the airport is dated February 8, 2019. The Booster Juice restaurant (a juice and smoothie bar) is a third-party service provider of the GTAA that operates, at one of its counters located at the airport, a play area adjacent to the Booster Juice counter, which offers an interactive experience for young travellers. The Booster Juice complaint was with respect to a unilingual English sign located at the entrance to the play area, which read “Toronto Pearson Booster Juice FIT & FUN ZONE” [the Booster Juice complaint].
[19] Before examining the issue of the Booster Juice complaint, I must point out that section 77 of the OLA grants the Court only limited jurisdiction over the complaint filed with the Commissioner by Mr. Thibodeau. In this case, the complaint filed by Mr. Thibodeau and dealt with by the Commissioner concerns only a specific inscription, namely the sign at the entrance to the play area. Mr. Thibodeau maintains before me that inside the play area, there are two tables with built-in electronic screens, larger free-standing screens on which video games are broadcast in English only, and two screens mounted on the wall. “Toronto Pearson Booster Juice FIT & FUN ZONE” can be seen on the side of one table and on the wall-mounted screens. In addition, a large neon sign reading “BOOST YOUR LIFE” can be found on a wall in the play area. No French equivalent was posted on either sign. However, these signs were not part of Mr. Thibodeau’s complaint to the Commissioner and, as such, I cannot deal with them.
[20] The Commissioner filed his investigation report in December 2019, confirming that Mr. Thibodeau’s complaint was founded and that GTAA had failed to comply with Part IV of the OLA. In response to the Commissioner’s preliminary investigation report, the GTAA explained that the play area is not used as a restaurant, and that it is not part of a restaurant under subsection 23(2) of the OLA and paragraph 12(1)(a) of the Regulations but is, rather, a play area. However, it appears that Booster Juice has nonetheless made changes to the play area, notably by adding signs in French. The Commissioner disagreed with the GTAA and concluded that paragraph 12(1)(a) of the Regulations states that services offered by restaurants are part of the contracted services that must be provided to the travelling public in both official languages. Since Booster Juice provides restaurant services under a contract with the GTAA, and since the play area is part of the Booster Juice counter in question, its signs are covered by subsection 12(2) of the Regulations and must be readily visible in both English and French. Recommendations, remedial measures and timelines were articulated by the Commissioner, which included recommendations that the GTAA take all necessary measures to ensure that Booster Juice signage at the airport is of equal quality in both official languages, and to remind airport service providers that all signage and written communications concerning services to the travelling public listed in subsection 12(1) of the Regulations must be of equal quality in both official languages.
[21] As in the case of the CIBC complaint, the GTAA asserts before me that the Booster Juice complaint is unfounded in law and should be dismissed. Indeed, the dispute between the parties centres primarily on the interpretation that should be given to the case law on the language rights of the travelling public and to the OLA, but in particular to the types of services provided by third-party contractors pursuant to subsection 12(1) of the Regulations. This interpretation, combined with an understanding of the main jurisprudential principles governing language rights, will together serve to confirm whether the GTAA breached its duties in relation to the scope of its obligations which devolve to third-party contractors operating a business in its airport.
[22] The central questions to be decided in T‑2013‑19 are as follows:
a)How are we to interpret subsection 12(1) of the Regulations in light of the main jurisprudential and legislative principles regarding language rights in order to give effect to the Regulations?
b)Does the evidence relating to the challenged complaints reveal a breach of the GTAA’s language obligations with respect to the provision of services by third- party contractors at Pearson International Airport under the OLA and section 12 of its Regulations? In particular, what interpretation should be given to the notion of “services”, as detailed in section 12 of the Regulations?
c)What remedy, if any, is appropriate?
III. Analysis
[23] The laws, regulations and other statutory instruments relevant to this case have been reproduced in the Annex. I note that the Court’s role is to carry out a de novo revue of Mr. Thibodeau’s application. The case law is clear: I am not bound by the findings or recommendations of the Commissioner’s reports. They are simply admissible evidence that may be challenged like any other evidence on the record (Thibodeau v Air Canada, 2005 FC 1156, [2006] 2 FCR 70 at para 62).
A. The OLA—Principles of interpretation applicable to language rights
[24] It is not disputed that the relevant provisions of the OLA and the Regulations apply to the GTAA. Moreover, the parties agree that the OLA enjoys a special status in the Canadian legal framework, and the case law has long recognized its quasi-constitutional status (Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 [Lavigne] at para 23; Thibodeau v Air Canada, 2014 SCC 67 [Thibodeau 2014] at para 12). This special status stems from its “constitutional roots” and “its crucial role in relation to bilingualism” (Lavigne at para 23). Indeed, the principles contained in the provisions of the OLA—with the exception of those in Part V—stem directly from sections 16 to 20 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter]. Thus, the provisions of the OLA take precedence over all other federal statutory or regulatory provisions, with the exception of those of the Canadian Human Rights Act, RSC 1985, c H-6.
[25] It is also important to remember the purpose of the OLA, set out in section 2, which at the relevant time read as follows:
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.
[Emphasis added.]
[26] The OLA, by virtue of its preamble, is an extension of the rights and guarantees recognized in the Charter and 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” (Doucet v Canada, 2004 FC 1444 at para 16, citing Canada (Attorney General) v Viola, 1990 CanLII 13036 (FCA), [1991] 1 FC 373 (CA) [Viola] at page 386).
[27] Subsections 23(1) and (2) of the OLA deal with the duty of federal institutions that provide services or make them available to the travelling public. These institutions must “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”. Subsection 23(2) also specifies the duties of these federal institutions in relation to services to the travelling public prescribed by regulation that are provided or made available by another person or organization pursuant to a contract.
[28] Section 25 of the OLA specifies the obligations related to services provided by third parties. It reads as follows:
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.
[29] The guiding principles governing the interpretation of the language rights in Canada—and therefore, by extension, the OLA—derive from the case law of the Supreme Court since the end of the 20th century. This implies that the Court is bound to interpret language rights according to the purposive approach, that is, an analysis that is based on the rights’ purpose (R v Beaulac, 1999 CanLII 684 (SCC), [1999] 1 SCR 768 [Beaulac] at para 25), and that requires giving Charter rights a generous and liberal interpretation to fully realize the purpose of the OLA, thereby advancing, in all cases, the preservation and development of official language minorities in Canada (Beaulac at paras 22–25; DesRochers v Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194 [DesRochers] at para 31; Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 21 at para 32; Mazraani v Industrial Alliance Insurance and Financial Services Inc, 2018 SCC 50 at para 20; R v Poulin, 2019 SCC 47 [Poulin] at para 53; Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13 at paras 239–40). This interpretive principle is based on the constitutional principle of the protection of minorities, and it illustrates the need to correct societal inequalities by mitigating the vulnerability of minority cultures and ensuring that members of the minority groups and majority groups have equal opportunities (Thibodeau v Canada (Senate), 2019 FC 1474 [Senate] at para 27, citing Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 79‑82). Thus, I must reject any strict or restrictive interpretation, considering the importance of language rights in Canadian society (Beaulac at paras 2 and 25).
[30] Moreover, for its interpretation to be consistent with the objectives of the OLA, substantive equality, as opposed to formal equality—which will require a comparison between the services offered to the linguistic majority community and those offered to the linguistic minority community—is to be the norm, and the exercise of language rights is not to be considered a request for accommodation (DesRochers at para 31); the components of substantive equality are the equality of status and use of English and French, which stems directly from section 2 of the OLA and section 16 of the Charter, and the equality of access to services of equal quality for members of both official language communities in Canada (Beaulac at para 22; Thibodeau v Air Canada, 2019 FC 1102 [Air Canada 2019] at para 40). Finally, the principle of a liberal and purposive interpretation of the OLA “translates into a residual presumption: if the application of the usual methods does not allow one to decide between two possible interpretations of the Act, one must choose the interpretation that maximizes the scope of language rights. A similar presumption applies to the Charter. . . . Since the Act is intended to give effect to certain Charter rights, it is logical that the same presumption should apply” [citation omitted] (Thibodeau v St. John’s International Airport Authority, 2022 FC 563 [under appeal] [St. John’s Airport] at para 23).
[31] That said, and although the interpretation of the OLA, like that of the Charter, is liberal and generous, the purposive approach should not be confused with liberal interpretation; as the Supreme Court stated in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant]:
While the twin principles of purposive and generous interpretation are related and sometimes conflated, they are not the same. The purpose of a right must always be the dominant concern in its interpretation; generosity of interpretation is subordinate to and constrained by that purpose. While a narrow approach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes. In brief, we must construe the language [of the sections of the statute] in a generous way that furthers, without overshooting, its purpose. [References and citations omitted.] (Grant at para 17; Poulin at paras 53‑55.)
[32] Moreover, while language rights are to be given a liberal interpretation within the outer bounds of the purpose of the applicable law, the words used remain important and, within the purposive approach, the analysis must begin by considering the text of the provision and “must not overshoot (or, for that matter, undershoot) the actual purpose of the right” (Quebec (Attorney General) v 9147-0732 Quebec inc., 2020 SCC 32, [2020] 3 SCR 426 [9147-0732 Quebec inc.] at para 8). While constitutional norms are deliberately expressed in general terms, the words used remain the most primal constraint on judicial review and form the outer bounds of a purposive inquiry (9147-0732 Québec inc. at paras 8–10; Poulin at paras 53–55; Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511 [Caron] at para 36). Indeed, the Commissioner accepts that the purposive interpretation does not exclude the principles of statutory interpretation under the usual approach, which requires consideration of the text, the entire context, the scheme of the Act, and Parliament’s purpose (Thibodeau 2014 at para 112; St. John’s Airport at para 23).
[33] Finally, the Commissioner adds, because of the fragility of official language minority communities, the Supreme Court has recognized the remedial character of language rights.
1. The Official Languages (Communications with and Services to the Public) Regulations
[34] The main issue in this case is whether the GTAA has complied with its language obligations under the Regulations with respect to the provision of services by third-party contractors operating a business at the airport. Before turning to the legislative interpretation of the Regulations, it is important to understand the impetus behind them. When the OLA was enacted in 1988, the Governor in Council was given the task of specifying the conditions necessary to implement the rights set out in Part IV of the OLA and section 20 of the Charter. This study was carried out by the Standing Joint Committee of the Senate and House of Commons on Official Languages through an extensive consultation process with various stakeholders, resulting in the adoption of the Regulations, which officially came into force in 1992.
[35] In this case, the Regulations implement subsection 20(1) of the Charter and certain key sections of Part IV of the OLA, which relate to communications with and services to the public. In particular, subsection 12(1) of the Regulations specifies which services provided pursuant to a contract are covered by the duty, set out in subsection 23(2) of the OLA, to provide services to the travelling public in both official languages: these include in paragraph 12(1)(a) “restaurant, cafeteria . . . services”, which is what the Booster Juice complaint is concerned with, and in paragraph 12(1)(b) “self-service equipment, including automated banking machines”, as in the CIBC complaint. The Regulations have made it possible to standardize the rules and criteria applicable to the scope of the language obligations of federal institutions, in particular by defining what constitutes “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”, referred to in subsection 23(2) of the OLA, while also setting out how the Regulations are to be applied.
[36] Thus, the question is, how are we to interpret the Regulations, since they derive from a quasi-constitutional statute? Although Mr. Thibodeau does not specifically address the question of the interpretative principles of law that apply to section 12 of the Regulations, the Commissioner argues that, given the quasi-constitutional nature of the OLA and the rights guaranteed under it, the Regulations must be interpreted in the same way as the OLA; therefore, it is essential that the Court adopt a purposive approach in interpreting the Regulations, as required by Beaulac, as well as a liberal and generous interpretation, based on the purpose which underlies the entire federal language regime, in order to guarantee the respect and implementation of the language rights of the travelling public. Thus, in response to the issues raised by the parties, the Commissioner states that the Court must interpret subsections 12(1) and (2) of the Regulations and give them a scope that takes into account the nature and purpose of the language rights conferred on the travelling public under Part IV of the OLA, as well as the principle of substantive equality. A broad and liberal interpretation, the Commissioner asserts, is justified by the particular nature and purpose of the Regulations, which favour the implementation of quasi-constitutional rights as much as the OLA itself, as well as by the special process for enacting the Regulations and the link between subsection 23(2) of the OLA and section 12 of the Regulations. The Regulations are not made according to a typical enactment process, as the specific steps to be followed in making them are established by the OLA (see sections 84 to 88 of the OLA) and include a consultation process with linguistic minorities to ensure that the Regulations are consistent with the objectives of the OLA; in the Commissioner’s view, subsection 23(2) of the OLA cannot be dissociated from the regulatory provision of the OLA set out in section 12 of the Regulations to ensure a harmonious interpretation of the two provisions, which must be read together.
[37] For my part, we must answer the question starting with first principles; as a general rule, the approach to statutory interpretation must be followed, with necessary adaptations, in interpreting regulations (Glykis v Hydro-Québec, 2004 SCC 60, [2004] 3 SCR 285 [Glykis] at para 5). In addition, in this case, the OLA and its regulations and policies together form a comprehensive statutory regime that governs the application and implementation of language rights within federal institutions; if the purpose of the OLA is to clarify and develop constitutional rights, its Regulations must be recognized as a key instrument for applying the fundamental values expressed in the OLA and the Charter. As the Regulatory Impact Analysis Statement [Regulatory Impact Analysis Statement] published with the Regulations makes clear, the Regulations implement certain key sections of Part IV of the OLA, which relate to communications with and services to the public; it is therefore impossible to dissociate the purpose of the Regulations from the purpose of Part IV of the OLA. Certain regulations, such as the ones at issue here, give a concrete scope to the rights and guarantees that have their source in the Charter; it would therefore be logical for the interpretation of the Regulations to be guided by the same principles applicable to so-called quasi-constitutional statutes, which the Regulations are intended to implement. Indeed, as Justice Martineau stated in Norton v Via Rail Canada, 2009 FC 704 at para 98, the OLA’s regulations “must always be interpreted and applied in a manner consistent with the general objectives of the preamble of the OLA and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism”.
[38] In this case, I see no reason to depart from the general principle of interpretation of regulations set out in Glykis when the statute in question is quasi-constitutional in nature. I am satisfied that, if the purpose of the OLA is to clarify and develop constitutional rights, its Regulations must be recognized as a key instrument for implementing the fundamental values expressed in the OLA and the Charter. The purpose of the Regulations is to clarify the scope of the language obligations set out in Part IV of the OLA. Thus, while the Court must refrain from questioning the political choices of Parliament in drafting the wording of the Regulations, it seems clear to me that the Regulations must nevertheless be interpreted according to the rules applicable to its quasi-constitutional enabling legislation, and that the interpretation of the wording of the Regulations must in no way limit or restrict the scope of its enabling legislation. Such an interpretation is the only way to ensure that the objectives of the OLA in relation to the travelling public are fully realized. Without qualifying the Regulations as quasi-constitutional, I am of the opinion that the principles of interpretation applicable to the OLA also apply to its Regulations. Since the OLA is a quasi-constitutional statute, its Regulations must therefore be interpreted using a purposive approach including the same broad and liberal interpretation applicable to language rights. It must be borne in mind that the Supreme Court in Beaulac clearly stated that a broad and liberal interpretation of Charter rights must be applied at all times, thereby fully achieving the purpose of the OLA, which is to advance, in all cases, the preservation and development of official language minorities in Canada (Beaulac at paras 22–25).
[39] The GTAA does not directly question the principle that the Regulations must be interpreted in the same way as the OLA, but stresses that the primacy of the text of the Regulations is more important than for other quasi-constitutional legislative instruments, given the detailed and complete list of services provided for in subsection 12(1) of the Regulations. In the GTAA’s view, despite the rule in favour of a broad and liberal interpretation of language rights, the text of subsection 23(2) of the OLA and subsection 12(1) of the Regulations limits their scope in that it restricts bilingualism requirements to the manner set out in the Regulations, with the emphasis on the notion of “service”. Consequently, a measured approach to the interpretation of the obligation imposed on the GTAA and the burden placed on third-party service providers is required. For his part, the Commissioner asserts that the words of section 12 of the Regulations are not as detailed as the GTAA suggests, and that, even if one were to examine the text of the Regulations, a strict, cautious or restrictive interpretation of language rights no longer has a place in Canadian law.
[40] As I have already pointed out, words matter and have meaning, and the policy choices of Parliament must be respected; the text of subsection 23(2) of the OLA and subsection 12(1) of the Regulations limits the scope of these provisions in that it restricts bilingualism requirements to what is provided for in the Regulations. To a certain extent, the GTAA is right in saying that the very text of subsection 23(2) of the OLA and subsection 12(1) of the Regulations illustrates a restrictive approach to the promotion of the travelling public’s language rights. Unlike the situation in St. John’s Airport, in this case, Parliament has chosen which services to the travelling public that are provided or made available by a third party or organization pursuant to a contract with the federal institution for the provision of those services must necessarily be provided or made available in both official languages; the fact that a choice of services prescribed by regulation has been made implies restrictions. However, the issue here is not the restrictive nature of the choices made, but rather the manner—restrictive or expansive—in which we must interpret the services that have been chosen and that appear on the list in subsection 12(1) of the Regulations.
[41] Mr. Thibodeau maintains that the principles of the OLA require that all signage, services and amenities offered at airports be bilingual. I cannot agree with