Date: 20051201
Docket: T-346-02
Citation: 2005
FC 1621
Ottawa, Ontario, December 1, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MICHEL
THIBODEAU
Applicant
and
AIR CANADA and
AIR CANADA REGIONAL INC.
Respondents
and
COMMISSIONER OF OFFICIAL
LANGUAGES OF CANADA
Intervener
REASONS FOR ORDER AND ORDER
BEAUDRY J.
[1]
On
August 24, 2005, the Court granted the applicant a remedy against Air
Canada under subsection 77(1) of the Official Languages Act, R.S.C.
(1985), c. 31 (4th Supp.) (OLA). The parties filed written submissions, and a
hearing was held on October 26, 2005 to dispose of issues relating to
non-monetary remedies, costs and disbursements.
ISSUES
[2]
Is the
applicant entitled to non-monetary remedies?
[3]
Is the
applicant entitled to his disbursements and costs?
ANALYSIS
[4]
The
relevant provisions of the OLA read as follows:
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76.
In this Part, "Court" means the Federal Court.
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76.
Le tribunal visé à la présente partie est la Cour fédérale.
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77.
(1) Any person who has made a complaint to the Commissioner in respect of a
right or duty under sections 4 to 7, sections 10 to 13 or Part IV or V, or in
respect of section 91, may apply to the Court for a remedy under this Part .
. .
(4)
Where, in proceedings under subsection (1), the Court concludes that a
federal institution has failed to comply with this Act, the Court may grant
such remedy as it considers appropriate and just in the circumstances.
(5)
Nothing in this section abrogates or derogates from any right of action a
person might have other than the right of action set out in this section.
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77.
(1) Quiconque a saisi le commissaire d'une plainte visant une obligation ou
un droit prévus aux articles 4 à 7 et 10 à 13 ou aux parties IV ou V, ou
fondée sur l'article 91 peut former un recours devant le tribunal sous le
régime de la présente partie. […]
(4)
Le tribunal peut, s'il estime qu'une institution fédérale ne s'est pas
conformée à la présente loi, accorder la réparation qu'il estime convenable
et juste eu égard aux circonstances.
(5)
Le présent article ne porte atteinte à aucun autre droit d'action.
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81.
(1) Subject to subsection (2), the costs of and incidental to all proceedings
in the Court under this Act shall be in the discretion of the Court and shall
follow the event unless the Court orders otherwise.
(2)
Where the Court is of the opinion that an application under section 77 has
raised an important new principle in relation to this Act, the Court shall
order that costs be awarded to the applicant even if the applicant has not
been successful in the result.
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81.
(1) Les frais et dépens sont laissés à l'appréciation du tribunal et suivent,
sauf ordonnance contraire de celui-ci, le sort du principal.
(2)
Cependant, dans les cas où il estime que l'objet du recours a soulevé un
principe important et nouveau quant à la présente loi, le tribunal accorde
les frais et dépens à l'auteur du recours, même s'il est débouté.
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1. Is the Applicant Entitled
to Non-Monetary Remedies?
[5]
In Doucet-Boudreau
v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, the Supreme Court set out
broad guidelines for judges assessing whether a remedy granted under
subsection 24(1) of the Canadian Charter
of Rights and Freedoms, which is worded similarly to subsection 77(4)
of the OLA, is “appropriate and just”.
As language rights are quasi-constitutional, our analysis will be guided by the
same principles (paragraphs 55 to 59 of Doucet-Boudreau):
First, an appropriate
and just remedy in the circumstances of a Charter claim is one that
meaningfully vindicates the rights and freedoms of the claimants.
Naturally, this will take account of the nature of the right that has been
violated and the situation of the claimant. A meaningful remedy must be
relevant to the experience of the claimant and must address the circumstances
in which the right was infringed or denied. An ineffective remedy, or one
which was “smothered in procedural delays and difficulties”, is not a
meaningful vindication of the right and therefore not appropriate and just (see
Dunedin, supra, at para. 20, McLachlin C.J. citing Mills,
supra, at p. 882, per Lamer J. (as he then was)).
Second, an appropriate
and just remedy must employ means that are legitimate within the framework of
our constitutional democracy. As discussed above, a court ordering a Charter
remedy must strive to respect the relationships with and separation of
functions among the legislature, the executive and the judiciary. This is
not to say that there is a bright line separating these functions in all
cases. A remedy may be appropriate and just notwithstanding that it might
touch on functions that are principally assigned to the executive. The
essential point is that the courts must not, in making orders under
s. 24(1), depart unduly or unnecessarily from their role of adjudicating
disputes and granting remedies that address the matter of those disputes.
Third, an appropriate
and just remedy is a judicial one which vindicates the right while invoking the
function and powers of a court. It will not be appropriate for a court to
leap into the kinds of decisions and functions for which its design and
expertise are manifestly unsuited. The capacities and competence of
courts can be inferred, in part, from the tasks with which they are normally
charged and for which they have developed procedures and precedent.
Fourth, an appropriate
and just remedy is one that, after ensuring that the right of the claimant is
fully vindicated, is also fair to the party against whom the order is
made. The remedy should not impose substantial hardships that are
unrelated to securing the right.
Finally, it must be
remembered that s. 24 is part of a constitutional scheme for the
vindication of fundamental rights and freedoms enshrined in the Charter.
As such, s. 24, because of its broad language and the myriad of roles it
may play in cases, should be allowed to evolve to meet the challenges and
circumstances of those cases. That evolution may require novel and
creative features when compared to traditional and historical remedial practice
because tradition and history cannot be barriers to what reasoned and
compelling notions of appropriate and just remedies demand. In short, the
judicial approach to remedies must remain flexible and responsive to the needs
of a given case
[6]
The applicant
is seeking the non-monetary remedies identified in bold hereinafter:
[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);
[translation]
(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;
[translation]
(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);
[10]
Since this
Court ruled in the order dated August 24, 2005 that the Charter did not
apply to the respondent, the applicant withdrew the application.
[translation]
(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;
[translation]
(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;
[12]
This
issue has already been disposed of in paragraphs 97 and 101 of the order dated
August 24, 2005:
We know that the OLA applies to Air Canada. The collective agreements
under the aegis of the CLC must not be incompatible with the implementation of
the OLA's purpose. If some incompatibility develops, the OLA will prevail over
the provisions of the collective agreement.
. . .
In this case, Air Canada
had a duty to ensure that its subsidiaries were providing services in both
official languages on routes with a significant demand. The principle that
statutes prevail over collective agreements applies in this case. Air Canada
must make the necessary arrangements with its unions to ensure compliance with
the OLA, bearing in mind that this statute is quasi-constitutional in nature.
[translation]
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;
[13]
After
considering the facts of this case and the applicable law, I do not believe
that the order sought should be imposed here. Owing to the distinctive facts
in the case under review, I hesitate to make the order and will explain why.
[14]
Between
the coming into force of the Air Canada Public Participation Act (R.S.C.
(1985), c. 35 (4th supp.) (the ACPPA)—of which subsection 10(2) imposes on Air
Canada an obligation of result in respect of its subsidiaries and the
enforcement of the provisions of the OLA—and the flight of August 14,
2000, when the applicant was not served in French, just over one month had
passed. Nevertheless, the evidence is silent on the subject of other breaches
of the OLA between the two dates, or between the coming into force of the ACPPA
and the date of the hearing in this case, October 26, 2005. I am therefore
unable to find the existence of systemic breaches by Air Canada.
[15]
Although
it is lamentable that the respondent failed in its language obligations by not
offering the applicant service in French, the seriousness of the breach of the
latter’s rights and the harm that he suffered must be distinguished from the
judicial precedents in which such orders were imposed. In Doucet-Boudreau,
cited supra, the province failed to provide adequate French language
instruction in schools to its Francophone minority. In Doucet v. Canada,
2004 FC 1444, the Royal Canadian Mounted Police communicated with the public in
English only in a highway zone where there was considerable demand for service
in both languages. In Forum des maires de la Péninsule acadienne v.
Canadian Food Inspection Agency, 2004 FCA 263, the issue was, in part, the
right of Francophone employees to work in French. In Lavigne v. Canada
(Human Resources Development), [1997] 1 F.C. 305 (T.D.), the breach related
to the applicant’s right to work in the official language of his choice.
[16]
Here,
two judges have made their determination, referring to the breach of the
applicant’s language rights on the August 14, 2000 flight as [TRANSLATION] “a
relatively minor, unique breach”. I concur with this assessment and
accordingly find that the imposition of the order sought by the applicant is
not warranted under the circumstances of this case.
[translation]
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;
[18]
The
applicant stresses how important it is for him to receive a letter of apology
from Air Canada. The respondent, on the other hand, argues that the order
dated August 24, 2005, is in itself an appropriate and just remedy and
that it would be unfair to be forced to apologize to the applicant. In
addition, the respondent states that it has nothing to apologize for, since it
demonstrated due diligence in complying with its language obligations. It also
pleads force majeure, with the coming into force of the Act on July 5,
2000.
[19]
With
respect, I cannot endorse the respondent’s position. It could have overcome
the constraints that it faced when the ACPPA came into force by, for example,
hiring staff or subcontractors capable of communicating in French. The force
majeure argument is, in my opinion, unacceptable, because the Act had been
foreseeable since at least February 2000.
[20]
A
letter of apology is, in my view, fully justified and will serve the purposes
of the OLA, given the circumstances and the perseverance required of the
applicant in order to obtain judicial recognition that his rights had been
violated: Lavigne, supra.
[21]
At
the hearing, the respondent submitted a draft letter of apology. After
examining the letter, the applicant stated that neither the noun “apology,” nor
the verb “apologize” was anywhere to be found in the letter. The Court agrees
with the applicant; the respondent will have to send the applicant a formal
letter of apology to the applicant.
[22]
As
for the demand that the letter be posted at the respondent’s customer service
counters, since the breach of the applicant’s language rights in the present
case is still less serious than the breaches established in Lavigne, supra,
and since no evidence of other systemic breaches of language obligations has
been offered, the Court will not force the respondent to post such notices.
2. Is the Applicant Entitled
to His Disbursements and Costs?
[24]
The
applicant claims an amount of approximately $6,000 for disbursements and $5,000
for costs.
[25]
Those
amounts cover all the judicial proceedings before the Federal Court and the
Ontario Superior Court.
[26]
In respect
of the 11 orders issued by our Court between June 12, 2002 and
February 15, 2005, the applicant has received no favourable awards as to
costs. Nine of the orders were issued without costs, and the other two were
issued with “costs in the cause”:
·
the
applicant was not a party to the order by Prothonotary Morneau dated April 9,
2004, concerning the Commissioner of Official Languages’ application for leave
to intervene in the case;
·
the
order by Noël J. dated June 2, 2004, dismissing the application to lift the
stay of proceedings brought by the applicant, was set aside when the stay of
proceedings was lifted, but without costs.
[27]
With
respect to the proceedings before the Ontario Superior Court, the respondent
properly argued that that Court could not rely on subsection 77(4) of the OLA
to extend its jurisdiction over disbursements and costs pursuant to section 81
of the OLA. It unfortunately appears that this legislative subtlety escaped
the retired former judge, Mr. Boudreault, who wrote the following at
paragraph 40 of his decision dated August 11, 2004:
[28]
Proceedings
involving monetary claims before the Ontario Superior Court were governed by a
Plan of Arrangement approved by the Superior Court. The definition of “claim”
in the Plan of Arrangement includes claims for costs before the Ontario court:
[29]
The order
by Farley J. of the Ontario Superior Court dated August 23, 2004 and
approving the Plan of Arrangement, reads as follows:
[30]
Whereas
this application is final, and having compared the receipts submitted by the
applicant against the list of disbursements submitted by the respondent, the
Court accepts the respondents’s argument and grants the amount of $1,875.95 in
disbursements.
[31]
The issue
of costs also raises certain problems, since the applicant represented himself,
requested no assistance from counsel and is a lay litigant. According to the
Federal Court of Appeal decision in Lavigne v. Canada (Minister of Human
Resources Development), [1998] F.C.J. No. 855 (F.C.A.) (QL), this renders
him ineligible for any costs awarded in accordance with Tariff B under
subsection 400(4).
[32]
However,
just because the applicant is a lay litigant does not mean that he is not
entitled to compensation for the time dedicated to enforcing his language
rights. In Canada (Attorney General) v. Kahn, [1998] F.C.J. No. 1542,
Teitelbaum J. wrote at paragraphs 33 to 38:
I am satisfied that the case
of Lavigne (supra) does not, in any way, limit my discretion to
determine the appropriate sum to be awarded to the respondent for his
out-of-pocket disbursements and for the time he spent in "defending"
his interests.
Having said the above, what
is an appropriate sum to be paid to the respondent for his costs?
I am bound to follow Mr.
Justice Marceau when he states in Lavigne (supra) "that lay
litigants cannot receive counsel's fees, under the Federal Court Rules, when
they successfully represented themselves."
This does not mean to say, as
I have said, that lay litigants who retain counsel for legal advice in order to
defend their interests, cannot be reimbursed for this expense and be reimbursed
for any other expense caused to the litigant as a result of the legal
proceedings instigated, in this case, by the applicant . . .
Pursuant to Rule 3 which
states:
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3.
These Rules shall be interpreted and applied so as to secure the just, most
expeditious and least expensive determination of every proceeding on its
merits.
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3.
Les présentes règles sont interprétées et appliquées de façon à permettre
d'apporter une solution au litige qui soit juste et la plus et économique
possible.
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and Rule 400(4), I am
satisfied that the respondent should be reimbursed a lump sum of $2,500.00 to
cover his disbursements for Court attendance and for time spent in consultation
with his legal counsel and for time spent in the photocopying of documents and
service of documents.
[33]
Exercising
my discretion, I believe that the applicant is entitled to a lump sum of $3,500
for his review and analysis of the case law and various acts and regulations
submitted by both himself and the other parties. In assigning a value to the
lump sum, I have also taken into account the many hours spent preparing his
case and writing his submissions, including this application, as well as the
time spent compiling the information, evidence and documents filed.
THE COURT ORDERS that:
1. The respondent send the applicant a formal letter
of apology, within 30 days from the date of the present order, for its violation
of the applicant’s language rights under the Official Languages Act during
the flight on August 14, 2000.
2. The respondent pay the applicant a lump sum of
$5,375.95 including disbursements.
“Michel
Beaudry”
Judge
Certified
true translation
Michael
Palles
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