Date: 20040602
Docket: T-346-02
Citation: 2004 FC 800
Ottawa, Ontario, the 2nd day of June 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MICHEL THIBODEAU
Applicant
and
AIR CANADA AND AIR CANADA RÉGIONAL INC.
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Intervener
REASONS FOR ORDER AND ORDER
[1] This is a motion under section 50 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act) and section 369 of the Federal Court Rules, 1998 (the Rules) for an order lifting the stay of proceedings, establishing a schedule for the continuation of the proceedings and a complementary order. On April 7, 2004, the applicant filed an additional affidavit with documents in support to update his file. The filing of this affidavit and these documents is allowed.
[2] The applicant in this case complains that he was not served in French by the flight attendant on an Air Ontario flight (AC 1347) between Montréal and Ottawa on August 14, 2000, and, once the Commissioner of Official Languages became involved (a complaint was filed by the applicant), on March 1, 2002, he commenced an action against Air Canada and Air Canada Régional Inc. under subsection 77(1) of the Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31 (the OLA), pursuant to section 76 of the OLA which reads as follows:
In this Part, "Court" means the Federal Court - Trial Division.
[3] In his proceeding, the applicant presents a set of requests that may be summarized as follows:
- a declaration that Air Canada and its subsidiary Air Canada Régional Inc. are subject to the OLA and the Air Canada Public Participation Act (the ACPPA);
- a declaration that Air Canada and its subsidiary Air Canada Régional Inc. are not complying with their language obligations under Part IV of the OLA;
- a declaration that a breach of the language rights under Part IV of the OLA is also a breach of the rights under sections 16 and 20 of the Canadian Charter of Rights and Freedoms (the Charter);
- a declaration that Air Canada and its subsidiary Air Canada Régional Inc. did not comply with their obligations under Part IV of the OLA and subsection 10(2)(a) of the ACPPA during flight AC 1347 between Montréal and Ottawa and consequently frustrated the exercise of the applicant's Charter language rights;
- a declaration that the provisions of the OLA and the ACPPA prevail over the provisions of any trade agreements or collective agreements;
- a mandatory order that Air Canada and its subsidiary Air Canada Régional Inc. take all necessary steps to ensure that the public may communicate with and receive all services in French;
- the implementation of procedures and a surveillance system to identify, document and quantify violations of language rights;
- an order to pay $25,000 in damages and $500,000 in punitive and exemplary damages;
- a mandatory order that Air Canada and its subsidiary Air Canada Régional Inc. give the applicant a letter of apology that would be posted at all customer service counters of Air Canada and its subsidiary Air Canada Régional Inc. for a period of two weeks;
- a declaration that Air Canada and its subsidiary Air Canada Régional Inc. are legally required to provide services in French as provided in Part IV of the OLA and in the ACPPA; and
- a declaration that Air Canada and its subsidiary failed in their duty to provide services in French to Francophone passengers.
[4] On April 1, 2003, the Honourable Mr. Justice Farley of the Ontario Superior Court awarded Air Canada and some of its subsidiaries protection from their creditors (including a stay of judicial proceedings) to allow them to carry out in an orderly manner the necessary commercial, corporate, financial and operational restructuring, pursuant to the Companies' Creditors Arrangements Act, R.S.C. 1985, c. C-36 (the CCAA), and this order has to this date been renewed.
[5] On October 5, 2003, at the respondents' request, I ordered a stay of the present proceedings until Mr. Justice Farley's stay order was definitively lifted, and I allowed the applicant and the Commissioner of Official Languages of Canada (who has "intervener" status limited to arguing a question of law) to request that the stay of proceedings be lifted, which the applicant moved to do on November 10, 2003.
[6] By way of information for understanding this judgment, Mr. Justice Farley, on September 18, 2003, issued an order entitled "Claims Procedure Order (CPO)" determining the appropriate procedure for making a claim under the CCAA's protection. The CPO includes a definition of the word "Claim" that reads as follows:
"Claim" means any right of any Person against one or more of the Applicants in connection with any indebtedness, liability or obligation of any kind of one or more of the Applicants... whether... disputed, undisputed,... present, future, known or unknown.... based in whole or in part on facts existing prior to April 1, 2003....
The appropriate procedure under the CPO is the following:
(a) any person wishing to file a claim should file on or before September 17, 2003, a Proof of Claim with the Monitor appointed by Farley J.;
(b) any claim for which no Proof of Claim is submitted by September 17, 2003, is extinguished and the creditor of that claim is forever barred from making or enforcing any claim in that regard;
(c) the Monitor, in conjunction with Air Canada, shall accept, revise or reject the amount claimed - which is the stage at which the present case has arrived;
(d) any creditor who intends to dispute a Notice of Revision or Disallowance shall file a Dispute Notice with the Monitor;
(e) an unresolved dispute shall be referred to a Claims Officer (currently the Honourable Mr. Justice Allan M. Austin and Mr. Martin Teplitsky, Q.C.) for determination; and
(f) a creditor may appeal the determination by the Claims Officer to the Ontario Superior Court of Justice.
Accordingly, the Protection Order of Farley J., dated April 1, 2003, is no longer an application to stay proceedings but in addition the CPO establishes a procedure for determining claims against the respondents.
[7] Having noted the problem in the present case, namely, the statutory specification that the Federal Court is the designated forum for making determinations arising out of the application of the OLA and the objectives contemplated by the CCAA, I issued a direction in which I asked the parties and their counsel to ask Mr. Justice Farley which of the forums (the CPO or the Federal Court) is the most appropriate for making the appropriate determinations arising out of this case.
[8] This was done and I thank the parties and their counsel. On April 1, 2004, Mr. Justice P. Rouleau of the Ontario Superior Court responded to the direction by orally issuing Reasons for Order that were subsequently reduced to writing and were forwarded to me on May 15, 2004, bearing Court number 03-CL-4932.
[9] I will present them succinctly:
- The Federal Court is subject to Farley J.'s order to stay the proceedings, dated April 1, 2003, according to his reading of section 11 of the CCAA;
- It seems to him that each of the parties is attempting to gain an advantage: the applicant and the intervener by avoiding the proceedings and thereby becoming the only creditors who are not required to submit their debt to the claims proceeding, and the respondents by using the restructuring process not only to settle their financial obligations but also to avoid the possibility that their language obligations would be defined;
- The CPO procedure covers the monetary claims made by the applicant;
- all other (non-monetary) claims should not be covered by the CPO procedure;
- The Federal Court should await the end of the CCAA process before hearing the claims since it may at that point take advantage of any benefits resulting from Mr. Justice Farley's final order;
- He suggests that the applicant continue to submit to the CPO procedure and hopes the intervener will seek to intervene in the CPO procedure, as this type of intervention could be of benefit to the decision-maker; and
- He hopes that the CPO procedure will be limited to the assessment of damages only and that it does not allow a determination on the non-monetary claims;
[10] I have some difficulty envisaging the possibility that the damages would be assessed without reference to language rights as well, because in my opinion the one could go with the other.
[11] However, I think the CCAA objectives merit serious consideration, and that an order of this Court should not prejudice those objectives. The respondents are going through a difficult period, and it is important that the system established by the orders of Mr. Justice Farley not be destabilized.
[12] However, it is apparent to me that the CCAA and the CPO procedure are not designed to deal with disputes involving the OLA but are directed to the settlement of the monetary claims. Moreover, it is the jurisdiction of the Federal Court, through its statutory specificity, to deal with language questions based on the OLA.
[13] The applicant's claims reflect a lot more than monetary issues (see paragraph 3 herein). In this regard, and as mentioned earlier, if the CPO mandate is limited to determining the quantum of damages without addressing the important question of language rights, inasmuch as this is possible, there is still a question as to whether the CPO procedure would be appropriate in these circumstances. If such is not the case, this Court will sooner or later have to assume its jurisdiction.
[14] In order not to affect the system established by the orders of Mr. Justice Farley, I think it is appropriate in the circumstances that the proceedings in this case continue to be stayed. Furthermore, inasmuch as the CPO proceeding is limited to the monetary claims, if that is possible, the stay of proceedings should continue until such time as Farley J. has issued a final order or until some other time determined by the Federal Court.
[15] In order to facilitate the task of the Monitor or a judge of the Ontario Superior Court, and as proposed by Mr. Justice Rouleau, the intervener should seriously consider intervening in the CPO procedure to ensure that her position is clearly communicated, thereby facilitating the task of the decision-maker.
ORDER
THE COURT ORDERS THAT:
- Leave is given to file the additional affidavit and documents pertaining thereto.
- The request to lift the order to stay is dismissed until the issuance of Farley J.'s final order or upon application by one of the parties if the circumstances so warrant.
- Costs to follow.
"Simon Noël"
Judge
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-346-02
STYLE: MICHEL THIBODEAU
v.
AIR CANADA AND AIR CANADA RÉGIONAL INC.
and
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
MOTION CONSIDERED ON WRITTEN REPRESENTATIONS WITHOUT APPEARANCE OF THE PARTIES
REASONS FOR ORDER
AND ORDER OF: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: JUNE 2, 2004
APPEARANCES:
MICHEL THIBODEAU THE APPLICANT
RENÉ CADIEUX FOR THE RESPONDENTS
PASCALE GIGUÈRE
AMÉLIE LAVICTOIRE FOR THE INTERVENER
SOLICITORS OF RECORD:
MICHEL THIBODEAU THE APPLICANT
OTTAWA, ONTARIO
FASKEN MARTINEAU DuMOULIN S.R.L. FOR THE RESPONDENTS
MONTRÉAL, QUEBEC
COMMISSIONER OF OFFICIAL LANGUAGES
OTTAWA, ONTARIO FOR THE INTERVENER
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