Date: 19980625
Docket: T-2043-96
OTTAWA, ONTARIO, THE 25th DAY OF JUNE 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Applicant
- and -
AIR CANADA
Respondent
ORDER
The motion with respect to the preliminary objections is dismissed.
J.E. DUBÉ
Judge
Certified true translation
M. Iveson
Date: 19980625
Docket: T-2043-96
Between:
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Applicant
- and -
AIR CANADA
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] Following an order made by this Court with the consent of the parties, the respondent (Air Canada) raised, by way of a motion, preliminary objections to the notice of an originating motion filed by the applicant (the Commissioner).
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[2] The Commissioner filed his motion on September 13, 1996 pursuant to paragraph 78(1)(a) of the Official Languages Act1 (the Act) in order to apply for a remedy against Air Canada with the consent of the complainant Robert Jolette (the complainant). Through the instant motion, Air Canada seeks an order to strike the Commissioner"s originating motion on the ground that the complainant"s consent is invalid because it relates to complaints "closed" by the Commissioner. Paragraph 78(1)(a ) reads as follows: |
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78. (1) The Commissioner may |
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(a) within the time limits prescribed by paragraph 77(2)(a) or (b), apply to the Court for a remedy under this Part in relation to a complaint investigated by the Commissioner if the Commissioner has the consent of the complainant . . . . |
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(emphasis added)
1. Facts
[3] The complainant filed six complaints with the Commissioner regarding the lack of bilingual services at Lester B. Pearson airport in Toronto. The Commissioner closed the first five complaints on March 23 and April 5, 1994 and informed the complainant that there would be a follow-up to ensure the commitments made by Air Canada were honoured. On October 16, 1994, the complainant filed another complaint. Following this sixth complaint, the Commissioner sent Air Canada a letter on November 1, 1994 advising the company that he intended to conduct an on-site investigation in light of the 15 complaints already received in respect of 1994. As Air Canada promised to honour its new commitments, the Commissioner closed the sixth complaint on February 7, 1995, although he stated [TRANSLATION] "that the Commissioner would follow it up as part of an in-depth investigation into the services provided at Pearson airport which will begin shortly".
[4] The final report on the in-depth investigation into bilingual ground services at the airport was issued on July 16, 1996. It confirmed the absence of services in French and the inadequacy of the action taken by Air Canada. The Commissioner wrote the complainant on July 18, 1996, informing him that because Air Canada had not adequately implemented the recommendations set out in his report, he intended to apply to the Court for a remedy pursuant to section 78 of the Act if he had the consent of the complainant. The complainant provided the requested consent on September 10, 1996.
2. Issues
[5] Air Canada"s argument is essentially based on three grounds:
1- The consent given by the complainant to apply to the Court for a remedy is invalid because the complaint files upon which his consent was based had already been closed for eighteen months. According to Air Canada, a closed file cannot serve as the basis for a court remedy under Part X of the Act;
2- The Commissioner"s investigation was conducted on his own initiative and is unrelated to the complainant"s complaints;
3- The complainant"s consent was obtained too late and the motion was filed after the end of the limitation period under sections 77(2) and 78 of the Act.
3. Status of "closed" files
[6] In his letters to the complainant, the Commissioner does indicate that the [TRANSLATION] "files are closed". The use of this administrative terminology is unfortunate and causes some problems. It is not very logical to say that a file is "closed" and that there will be a "follow-up". The expression actually means that the Commissioner has obtained a commitment from the institution concerned that it will resolve the situation, but that if the changes made by the institution are not satisfactory, the Commissioner will reopen the file and proceed with the investigation in order to act on the complaint.
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[7] In a recent case involving the same two parties, I had to examine the nature of so-called closed complaints. I consider it appropriate to reproduce these two relevant paragraphs from my decision:2 |
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Nothing in the Act indicates that information in closed files, namely files already considered by the Commissioner, cannot be reconsidered in reviewing similar complaints in respect of the same federal institution. The closed files in question in the case at bar were apparently not closed to the satisfaction of the complainants. The fact that those complainants did not avail themselves of the court remedy available to them under Part X of the Act does not render the material information contained in their files irrelevant or inadmissible. The Act draws no distinction between complaints that are "open" and those that are "closed". |
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Furthermore, subsection 64(2) authorizes the Commissioner to follow up on his recommendations where in his opinion adequate and appropriate action has not been taken thereon within a reasonable time. Subsection 64(2) places no time limit on this follow-up by the Commissioner. There may be situations in which complaints are closed administratively after promises or commitments are received from the federal institution concerned. However, when the commitments are not honoured or other complaints are subsequently filed, the Commissioner can continue to deal with the unresolved problem.
[8] This unfortunate administrative expression cannot be used to challenge a decision by the Commissioner to reopen a file and proceed with an investigation when the institution concerned has not honoured its commitments or at least resolved the situation to the Commissioner"s satisfaction. If the Commissioner feels that the institution is not meeting the requirements of the Act following an investigation or other complaints by the same or other complainants, he has the right and duty to take appropriate action.
[9] The expression "closed file" is a concept foreign to the Act. The Act refers only to the Commissioner"s decision to refuse to investigate or cease to investigate a complaint, in subsection 58(5), and to the report to the complainant of the results of the investigation of the complaint, in paragraph 77(2)(a ). Subsection 61(1) provides that, subject to the other provisions of the Act, the Commissioner may determine the procedure to be followed in carrying out any investigation under the Act. He is the master of his own procedure.
[10] The Commissioner is a linguistic ombudsman who must attempt to settle questions brought to his attention out of court, particularly systemic problems. When he has made recommendations but the institution has failed to act thereon, the Commissioner conducts a follow-up and makes comments or a new recommendation pursuant to subsection 64(2). He may accordingly "close" or "reopen" files where appropriate and use an accumulation of complaints to establish proof of a systemic problem at an institution, although he must of course comply with the Act.
[11] There is certainly no reason to conclude, as Air Canada alleged, that the Commissioner is functus officio with respect to the complaint files which have accumulated in his office. As defined in Chandler,3 functus officio is the general rule that a final decision of a court cannot be reopened. In the case at bar, this is not a final decision of a court, since the problem raised in the complaint is not resolved if the institution concerned does not honour its commitments.
4. Scheme of the Act
[12] Section 56 of the Act provides that it is the duty of the Commissioner to take all necessary measures to ensure recognition of the status of both official languages and compliance with the spirit and intent of the Act. For this purpose, it is the duty of the Commissioner to conduct and carry out investigations either on his own initiative or pursuant to any complaint made to the Commissioner (subsection 56(2)). When exercised within the scope of his authority, his power is exceptional and he has a quite unusual power to intervene. I consider it appropriate to reproduce the following passage from the Federal Court of Appeal"s decision in St-Onge v. Canada :4 This duty imposed on a deputy-head5 to ensure that the spirit and intent of the Act are complied with in a given case is exceptional. A quite unusual power to intervene has been conferred on the Commissioner and, when he receives a complaint, Parliament has expressly ordered him to get to the heart of the matter and not simply to examine the technical legality of the actions taken by the government department against which the complaint is laid.
[13] The Commissioner must consider every complaint he receives. If he refuses to investigate or ceases to investigate any complaint, he must give the complainant the reasons for his decision (section 58). After carrying out an investigation pursuant to a complaint, the Commissioner must provide a report, with reasons, to the complainant and the institution concerned (subsection 64(1)). Where he has made recommendations but the institution has not acted thereon, the Commissioner may inform the complainant: in other words, he may conduct a follow-up and make comments or new recommendations (subsection 64(2)).
[14] Part X of the Act, entitled "Court Remedy", provides, in section 76, that in this Part, "Court" means the Federal Court " Trial Division. Section 77 provides that any person who has made a complaint to the Commissioner may apply to this Court for a remedy. Section 77 also sets out the four specific times at which the application may be made by the complainant:
1- Sixty days after the complainant was informed of the Commissioner"s decision to refuse or cease to investigate the complaint (subsections 77(2) and 58(5));
2- Six months after the complaint was made if the complainant has not yet been informed of the results of the investigation of the complaint (subsection 77(3));
3- Sixty days after the results of an investigation of the complaint by the Commissioner are reported to the complainant (subsection 77(2)); and
4- Sixty days after the complainant is informed that the Commissioner is of the opinion that the institution concerned has not taken action within a reasonable time on the recommendations he made previously (subsections 77(2) and 64(2)).
[15] In the case at bar, the Commissioner submits that it is the third limitation period which applies: the complainant received the results of the investigation on July 18, 1996 and consented to the remedy on September 10, 1996, and the application was filed on September 13, 1996, that is, within the prescribed time limit. The application at issue may be made by the complainant or by the Commissioner on his behalf with the complainant"s consent, and paragraph 78(1)(b ) provides that the Commissioner may appear before the Court on behalf of any person who has applied for a remedy.
[16] Air Canada alleges that the remedy provided for in Part X of the Act is not available in respect of an investigation initiated by the Commissioner himself or carried out independently of a complaint. In such cases, the only remedies available are to be found in sections 63 and 65 to 69 of the Act and the report must be transmitted to the Governor in Council, who may take such action as he or she considers appropriate in relation to the report. If the Governor in Council does not take adequate and appropriate action thereon, the Commissioner may then make a report thereon to Parliament.
[17] Air Canada adds that the Commissioner does not have the power to apply for a court remedy under Part X based on an investigation conducted on his own initiative which is unrelated to a complaint: since the file relating to the complainant"s complaint was closed, it cannot serve as the basis for consent.
[18] In my view, these arguments, however ingenious they might appear, cannot be accepted for the reasons set out above. First, the Commissioner"s investigation is clearly related to the 15 complaints already received in respect of 1994, and in particular the complainant"s latest complaint, all of which are directly related to the lack of services in French at Lester B. Pearson International Airport in Toronto. Second, even if the complainant"s file was "closed" in the bureaucratic sense of the word, it is still available to the Commissioner, who can use it as he sees fit and apply to the Court for a remedy with the complainant"s consent if the consent is filed within sixty days, as set out in subsection 77(2) of the Act.
[19] It should be remembered that subsection 77(4) confers a very broad discretion on the Court to grant such remedy as it considers appropriate and just against a federal institution which has failed to comply with the Act. This subsection restates subsection 24(1) of the Canadian Charter of Rights and Freedoms, which authorizes anyone whose rights have been denied to apply to a court of competent jurisdiction to obtain such remedy "as the court considers appropriate and just in the circumstances".
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[20] By their very nature, these two subsections are mandatory and must be implemented by the institutions to which they apply. If necessary, these institutions must change portions of their institutional structure in order to ensure that language rights are respected. The statutory scheme set out in Part X of the Act must accordingly be interpreted in relation to its objectives. From this perspective, the following description of the Act by the Federal Court of Appeal in Canada (Attorney General) v. Viola6 should be noted: |
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. . . 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."
5. Conclusions
[21] I must accordingly conclude that the complainant"s consent to the application for a court remedy was valid, that his complaint was valid and could serve as the basis for a court remedy pursuant to Part X of the Act, that the Commissioner"s investigation was clearly related to this complaint and to the other similar complaints made by the complainant in the instant case and by other complainants, that the application was made within sixty days after the results of the investigation of the complaint by the Commissioner were reported to the complainant, that the procedure followed by the Commissioner was consistent with his powers and his role as a language ombudsman, and that Air Canada did not suffer any prejudice, since it was informed throughout the investigation process and had the opportunity on a number of occasions to respond and comment before the Commissioner"s final report on the investigation was filed. In addition, Air Canada will have the opportunity to assert its rights at the hearing into the application before this Court.
[22] This motion with respect to the preliminary objections is accordingly dismissed.
OTTAWA, Ontario
June 25, 1998
J.E. DUBÉ
Judge
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2043-96
STYLE OF CAUSE: COMMISSIONER OF OFFICIAL LANGUAGES
OF CANADA
v.
AIR CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 16, 1998
REASONS FOR JUDGMENT BY DUBÉ J.
DATED June 25, 1998
APPEARANCES:
Daniel Mathieu FOR THE APPLICANT
François Lemieux FOR THE RESPONDENT
SOLICITORS OF RECORD:
Office of the Commissioner of Official Languages
344 Slater Street
Ottawa, Ontario
K1A 0T8 FOR THE APPLICANT
Osler, Hoskin & Harcourt
1500-50 O"Connor Street
Ottawa, Ontario
K1P 6L2 FOR THE RESPONDENT
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1 R.S.C., 1985 (4th Supp.), c. 31.
2 Commissioner of Official Languages of Canada v. Air Canada, T-1989-96, December 31, 1997, at pp. 10-11.
3 Chandler v. Alta. Assoc. of Architects, [1989] 2 S.C.R. 848.
4 [1992] 3 F.C. 287, at p. 300.
5 Section 50 of the Official Languages Act.
6 [1991] 1 F.C. 373, at p. 386.
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