Date: 20111212
Docket: A-358-11
Citation:
2011 FCA 343
Present: BLAIS C.J.
BETWEEN:
AIR CANADA
Appellant
and
MICHEL
THIBODEAU
and
LYNDA
THIBODEAU
Respondents
and
COMMISSIONER
OF OFFICIAL LANGUAGES
Respondent/Intervener
REASONS FOR ORDER
BLAIS C.J.
[1]
This is a motion by Air
Canada to stay an order pending appeal under paragraph 398(1)(b)
of the Federal Courts Rules.
[2]
For the reasons that
follow, Air Canada’s motion is allowed.
RELEVANT FACTS
[3]
The respondents, Michel
Thibodeau and Lynda Thibodeau, initially filed eight complaints with the
Commission of Official Languages concerning the service they received from Air Canada on eight different flights.
[4]
The Federal Court, in a
judgment dated July 13,
2011, held that Air Canada had
by its own admission failed to comply with the requirements of the Official
Languages Act on four occasions, more specifically, the following:
-
Flight AC8627: Air Canada acknowledges that there were no bilingual flight attendants on board
the Toronto–Atlanta flight, a flight with a significant demand for services in
French;
-
Flight AC8622: Air Canada
admits that the pilot’s announcement concerning the arrival time and weather
was not translated by the bilingual flight attendant, even though this was a
flight with a significant demand for services in French;
-
Flight AC7923: Air Canada acknowledges that there were no bilingual flight attendants on board
this flight with a significant demand for services in French;
-
Toronto Airport: Air Canada admits that the announcement made to the
passengers of Flight AC7923 regarding baggage collection was not made in French,
despite the significant demand for services in French at Toronto Airport.
[5]
To remedy the
situation, the Court ordered Air Canada to
- give the applicants a letter of apology containing the text
appearing in Schedule “A” to this order, which is the text of the
draft apology letter filed by Air Canada;
- make every reasonable effort to comply with all of its duties
under Part IV of the Official Languages Act;
- introduce, within six months of this judgment, a proper monitoring
system and procedures to quickly identify, document and quantify potential
violations of its language duties, as set out at Part IV of the OLA
and at section 10 of the ACPPA, particularly by introducing a
procedure to identify and document occasions on which Jazz does not assign
flight attendants able to provide services in French on board flights on
which there is significant demand for services in French;
- pay the amount of $6,000 in damages to each of the applicants;
- pay the applicants the total amount of $6,982.19 in costs,
including the disbursements.
[6]
Further to this order, Air
Canada paid a total amount $18,982.10, which is the total
amount provided for at paragraphs 4 and 5 of the order, and wrote a letter
of apology in accordance with paragraph 1 of the order.
[7]
On September 28,
2011, Air Canada nevertheless filed in the Federal Court of
Appeal a notice of appeal asking the Court to set aside paragraphs 2, 3 and
4 of the order, as well as the award for damages and the so-called structural
order made by the Federal Court.
[8]
On October 28, 2011, Air Canada filed this motion, by which it asks this
Court to grant a stay of the second and third elements of the order.
ISSUE
[9]
Should the Court stay
the decision of the Federal Court pending Air Canada’s appeal?
ANALYSIS
[10]
The parties agree on
the test applicable to a stay application. The test was laid down by the
Supreme Court of Canada in RJR-MacDonald
Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311.
[11]
According to that judgment,
a motion to stay may be granted only if the applicant demonstrates that
- there is a serious question to be
determined;
- irreparable harm will result if the stay is not granted;
- the balance of convenience favours the
applicant.
Serious question
[12]
To determine whether
there is a serious question, the judge hearing the motion must carry out a
limited review of the merits of the case to ensure that it is not frivolous or
vexatious.
[13]
Air Canada submits that there is a serious question. It argues
that the Federal Court judge erred in making a general order to comply with the
Act, as well as a structural order. Air Canada further submits that the general order to comply with the Act leaves it
perpetually exposed to the threat of contempt of court proceedings.
[14]
The respondents, for
their part, admit that Charter rights and the public interest are
serious questions. Consequently, at paragraph 13 of their submissions,
they concede that Air Canada’s motion meets the serious question requirement.
The Commissioner of Official Languages also concedes that there is a serious
question.
[15]
Considering the
exceptional nature of the Federal Court judge’s order and the admissions of the
respondents and the intervener/respondent, I have no hesitation in concluding
that the questions raised on appeal by Air Canada are indeed serious.
Irreparable harm
[16]
The irreparable harm
requirement refers to the nature of the harm rather than its magnitude (RJR-MacDonald, above, at paragraphs 79–80).
Irreparable harm is “harm which either cannot be quantified in monetary terms
or which cannot be cured, usually because one party cannot collect damages from
the other” (RJR-MacDonald, above, at paragraph 59). The fact that one party
may be impecunious does not automatically determine the motion, although it may
be a relevant consideration (RJR-MacDonald,
above, at paragraph 59).
[17]
At
this stage of our examination, I believe it is helpful to review paragraphs 2
and 3 of the disposition of the judgment, which are problematic for Air Canada. It is important to
determine whether having to discharge the duties set out at paragraphs 2 and
3 of the order would cause Air Canada irreparable harm.
[18]
At
paragraph 2, the Federal Court judge orders Air Canada to “make every
reasonable effort to comply with all of its duties under Part IV of the Official
Languages Act”.
[19]
Structural injunctions are few and far between
in Canada. In the judgments reviewed,
the structural injunctions sometimes provided for an order to make every reasonable
effort to comply with the order, not the legislation. For example, in Doucet-Boudreau
v. Nova Scotia
(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R.
3 at paragraph 7, the trial judge had ordered the respondents to “use their best efforts to comply with this Order.”
[Emphasis added.] Another example can be found in Brown v. Board of
Education, 349 U.S. 294 at paragraph 6, a judgment of the United
States Supreme Court: “[T]he courts will require that the defendants make a
prompt and reasonable start toward full compliance with our May 17, 1954,
ruling.”
[20]
An order to make every reasonable effort is a
vague order. I have not found any commentary on this subject, judicial or
doctrinal. In my view, this is an order that accompanies complex structural
injunctions. It generally precedes an order by which the trial judge reserves
jurisdiction to oversee the enforcement of the order.
[21]
In the present case, the order requires Air Canada to make every reasonable effort to
comply with the Act, not the order. Indeed, as stated in Air Canada’s submissions at paragraph 9, there
was no need to make an order to make every reasonable effort to comply with the
Official Languages Act because the Act is in itself an injunction to
comply with the standards set out in its provisions. Here, I adopt the comments
of the Quebec Court of Appeal in Métromédia CMR inc. c. Tétreault,
[1994] J.Q. No. 2785 at paragraph 36, [1994] R.J.Q. 777 (C.A.Q.):
[translation]
36. The general rule is that any offence must be
punished by the penalty provided for by the act creating the offence. Normally,
superior courts do not have to make injunctive orders to tell people to obey
the law. The law is in itself an injunction. However, there are exceptional
cases where certain persons make it clear that they are firmly resolved to
disobey the law and systematically commit the same offences over and over
again, preferring to pay the fine.
[22]
I think it is
reasonable to say that Air Canada is required to meet its duties under the Act.
Clearly, it will be up to the appeal judges to thoroughly examine this part of
the order which appears to add an additional duty to comply with the Act. The
vagueness of this part of the order leads me to conclude that it is preferable
to stay its application until such time as the Court of Appeal rules on its
merits and scope. It is very clear, however, that the duty to comply with the Official
Languages Act is not stayed.
[23]
Air Canada argues that implementing the judge’s order,
particularly in respect of paragraph 3, would require the immediate deployment
of complex, expensive and irreversible measures. It notes that the order forces
it to make major systemic changes within six months. It states that it will
have to develop procedures and systems for identifying, quantifying and
documenting the work of thousands of Air Canada and Jazz employees.
[24]
In its
submissions, Air Canada states that the order affects more than 10,100 airport
employees, including 7,500 flight attendants and 2,600 passenger services
employees working in airports in such areas as boarding kiosks, concierge services, private lounges, check-in
counters, luggage drop-off counters, ticket offices, baggage claim counters and
special boarding and deplaning assistance.
[25]
Air Canada adds that such a system-wide effort would involve a complex and
irreversible process whose cost is difficult to quantify. It adds that a mandatory
order may in itself cause irreparable harm. In this regard, it refers to
the Quebec Court of Appeal’s judgment in Université Laval c. Syndicat des
employés et employées de l’Université Laval, J.E. 2001-214 at
paragraph 15, 102 A.C.W.S. (3d) 953 (C.A.Q.):
[translation]
In this case, conclusions 1, 2 and 3 consist of mandatory orders,
which by law are not enforceable orders notwithstanding appeal. This is so
because the enforcement of mandatory orders generally makes it impossible for
the parties to undo what has been done and be restored to the status quo. In
this sense, the situation becomes “irreparable”.
[26]
I note that in that case,
the Quebec Court of Appeal granted a motion to stay an order of the Human
Rights Tribunal to change the applicant’s pay structure.
[27]
According to Air Canada, the possibility of going back once the order is enforced,
particularly with respect to paragraph 3, becomes a moot question and will
not make the harm any less irreparable. Air Canada therefore
seeks maintenance of the status quo ante pending the proceedings to
preserve its right of appeal.
[28]
For their part, the
respondents Thibodeau submit that Air Canada has not shown irreparable
harm. They argue, on the contrary, that the structural order is consistent with
Air Canada’s mission statement on official languages, as
described in its Annual Report 2010.
[29]
The
respondents also refer to the report of the Commissioner of Official Languages
published after an audit of Air Canada in 2010–2011.
In the report, it is stated that Air Canada promised to take a series of
measures to remedy breaches of the Official Languages Act.
[30]
At
the hearing, Air Canada conceded that a partial stay of paragraph 3 would
suffice. More specifically, it stated that it had already set up the process
described in the second part of that paragraph, which reads as follows:
. . . by introducing a
procedure to identify and document occasions on which Jazz does not assign
flight attendants able to provide services in French on board flights on which
there is significant demand for services in French.
[31]
Air Canada argues that it was able to set up a process that complies with the
Federal Court judge’s order with respect to the requirements concerning Jazz
but submits that the first part of paragraph 3 of the order is far too
vague and almost impossible to carry out in the circumstances. Indeed, it is
the first part of the order which, according to Air Canada, forms the very basis of the appeal it has brought before this
Court.
[32]
For
his part, the Commissioner submits that Air Canada has not described the nature
of the harm in sufficient and specific detail.
[33]
In this regard, the
Commissioner refers to the original English version of the judgment of
Justice Stratas of this Court in Shotclose v. Stoney First Nation,
2011 FCA 232 at paragraphs 48–49:
On
the issue of the irreparable nature of the harm, the evidence offered by the
appellants also falls short. The evidence offered in support of a stay must
demonstrate with particularity - not just assert with generality - the actual
existence or real probability of harm that cannot be repaired later. It is all
too easy for those seeking a stay in a case like this to enumerate problems, call
them serious, and then, when describing the harm that might result, to use
broad, expressive terms that essentially just assert - not demonstrate to the
Court's satisfaction - that the harm is irreparable.
A stay of a judgment must be regarded for what it
is. It is the temporary prevention of a judgment - made on the basis of
evidence, submissions and due consideration - from having force according to
its terms. To get that sort of remedy, the moving party must do more than
identify harm or inconvenience. The moving party must demonstrate (along with
the other branches of the RJR-Macdonald test) that harm will actually be
suffered and that it will not be able to be repaired later. It must do this by
providing evidence concrete or particular enough to allow the Court to be
persuaded on the matter.
[At the time of the hearing, only the original
English version was available.]
[34]
However, I am not
satisfied that Shotclose applies here. In that case, the order that was
the subject of the motion to stay ordered that elections be held for a First
Nations band council. The advantages of holding an election clearly outweighed
the fears of the chaos that would allegedly result from the absence of
governance in the community while the election was being held. In the present
case, the harm that Air Canada would sustain if a stay were denied is far from
hypothetical.
[35]
The Commissioner adds
that Air Canada’s fears of contempt of court proceedings are speculative and
hypothetical. He argues that the risk of conviction for contempt of court is
not irreparable harm within the meaning of RJR-MacDonald, but a usual
consequence of a Federal Court order.
[36]
In this respect, I
fully agree with the Commissioner that fears of contempt of court are never
sufficient grounds for finding irreparable harm.
[37]
Having considered the particular
language used in paragraph 3 of the Federal Court order, I have no choice
but to side with Air Canada: enforcement of the structural order, particularly
the first part of paragraph 3, would in my opinion result in irreparable
harm.
[38]
Clearly, the structural
changes required to discharge the very broad duty to identify and document
potential breaches of the Act could place a significant financial burden on Air
Canada, one for which the respondents could never compensate
should Air Canada’s appeal be allowed. Moreover, these
structural changes would affect over 10,000 Air Canada employees who are in contact with more than 223,000 passengers a day.
Air Canada would have difficulty not only meeting the
requirements of a vague order, but also, if victorious on appeal, dismantling a
system that no doubt would have taken months to set up.
[39]
I therefore have no
hesitation in concluding that not granting a stay would cause Air Canada irreparable harm.
Balance of convenience
[40]
According to the
test established in RJR-MacDonald, above, this branch of the test requires me
to consider the harm that each party would suffer, depending on the outcome of
the motion, as well as the public interest.
[41]
I have already discussed
the harm that Air Canada would suffer. Air Canada submits that, should a stay be denied, neither the respondents nor the
public would suffer any harm comparable to the permanent structural changes
that it would have to make even before exercising its right to appeal.
[42]
Air Canada further
suggests that the public interest would be protected if a stay were granted,
since Air Canada would still be required to comply with the
entire Official Languages Act, and the public would continue to
have access to the remedies under that legislation.
[43]
As a last
argument, Air Canada adds that this does not appear to be an
urgent case, since the trial judge found that Air Canada and Jazz were making
significant efforts and investing considerable amounts to meet their official
languages duties. The judge also noted
the low rate of complaints, 12 complaints in approximately 47 million
points of contact (0.0000255%). Air Canada stresses that this rate is far below
the 0.006% rate in Via Rail Canada Inc. and Canadian Transportation Agency,
T-2311-03, T-2312-03 (December 19, 2003).
[44]
The respondents Thibodeau
disagree with Air Canada’s arguments. They counter that a stay would amount
to an endorsement of the current situation where the constitutionally
guaranteed language rights of the public are being violated, and that the
public interest must prevail over the economic considerations raised by Air Canada.
[45]
Admittedly, the decision
whether or not to stay the application of paragraphs 2 and 3 of the
Federal Court judge’s order will not drastically change the day-to-day situation.
Indeed, setting up a monitoring system to identify, document and quantify
possible breaches of Air Canada’s language duties will in no way limit, control or
reduce the number of infractions that may be committed, at least in the short
term. Consequently, the public interest will not be compromised by a stay, since
implementing the system proposed by the judge will only serve to identify and
advance knowledge of breaches of these language duties.
[46]
In the circumstances, I
have no doubt that the balance of convenience favours Air Canada. Indeed, Air Canada continues to strive to offer services to passengers
in French, although it has not achieved 100% compliance with its duties under
the Official Languages Act.
CONCLUSION
[47]
Whereas
Air Canada’s motion meets the three
criteria of the test in RJR-MacDonald in that there is a serious
question, irreparable harm would result from denying a stay, and the balance of
convenience undeniably favours Air Canada, I have no hesitation in concluding that a
stay is warranted in the circumstances.
[48]
Obviously,
I am taking into consideration Air Canada’s admission concerning the third element
of the order. Without prejudice to its arguments on appeal, Air Canada submits that it has
already set up a process for identifying and documenting cases where Jazz does
not assign flight attendants who are able to provide services in French on
board flights with a significant demand for services in French, as stipulated
by paragraph 3 of the Federal Court judge’s order. It will be up to the
judges at the hearing on the merits to decide the issue for the long term.
[49]
Now therefore, the Court
1.
orders that this motion
to stay an order pending appeal be allowed;
2.
orders that a stay be
granted regarding the duty to make every reasonable effort to comply with all of its duties
under Part IV of the Official Languages Act;
3.
orders that a stay be granted
regarding the duty to introduce, within six months of this judgment, a proper
monitoring system and procedures to quickly identify, document and quantify
potential violations of its language duties, as set out at Part IV of the Official
Languages Act and at section 10 of the Air Canada Public
Participation Act;
4.
with costs in the cause;
5.
further orders that the hearing on the merits of
the appeal be scheduled for April 25, 2012, for four hours; and
6.
directs the parties to comply with the
provisions of the Federal Courts Rules regarding the filing of documents
and to ensure that the record is perfected and ready for hearing 30 days before
the hearing, that is, no later than March 22, 2012.
“Pierre Blais”
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