Date: 20070322
Dockets: A-442-05
A-630-05
Citation: 2007 FCA 115
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
NOËL
J.A.
BETWEEN:
AIR CANADA
Appellant
and
MICHEL THIBODEAU
Respondent
and
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Intervener
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
This is an
appeal against two decisions of Mr. Justice Beaudry (judge) of the Federal
Court, dated August 24, 2005 (2005 FC 1156), and December 1, 2005 (2005 FC 1621).
[2]
In these
decisions, Beaudry J. allowed the respondent’s application for remedy against
the appellant under subsection 77(1) of the Official Languages Act,
R.S.C. 1985 (4th Supp.) (OLA).
[3]
In Federal
Court, the respondent, representing himself, alleged an infringement of his language
rights insofar as, contrary to section 10 of the Air Canada Public
Participation Act, R.S.C. 1985 (4th Supp.) (ACPPA), Air Ontario, a subsidiary of Air Canada, was unable to serve him in
French on a flight from Montréal to Ottawa.
The flight took place on August 14, 2000. The fact that the lone flight
attendant on duty was a unilingual Anglophone is not contested.
[4]
The
decision dated December
1, 2005, ordered
the appellant to send the respondent a formal letter apologizing for the
violation of his language rights. The decision also ordered the appellant to
pay the respondent $5,375.95, including $1,876.95 in disbursements. The
difference of $3,500 was awarded to the respondent for his review and analysis
of the case law.
[5]
The
respondent has filed a cross-appeal against the $5,375.95 lump sum determined
by Beaudry J. He claims fees and disbursements totalling $43,920 instead of the
amount awarded by the judge.
Analysis of the grounds in support of the
appeal
[6]
Six
grounds of appeal, five of which are incidental, were invoked by the appellant
against the two decisions. Only one of these grounds concerns the merits of the
case. I will consider only this ground, since it is sufficient to dispose of
this matter.
[7]
I will
then deal with the appellant’s argument to the effect that the respondent is
not entitled to costs because he represented. I hasten to add that the
appellant has paid the respondent $5,375.95 in execution of the Federal Court
judgment. The appellant added at the hearing that it did not intend to claim
the reimbursement of this amount should the appeal be allowed. Nevertheless,
the appellant submits that this remains an important matter of principle, considering
the cross-appeal, in which a considerable increase in this amount is sought.
[8]
As was
done at the hearing for greater efficiency, I will deal with this issue when
analysing the cross-appeal.
[9]
In Federal
Court, there was a debate over the nature and intensity of the obligation under
subsection 10(2) of the ACPPA. The first two subsections of section 10 read as
follows:
|
10. (1) The Official Languages Act applies to the
Corporation.
(2)
Subject to subsection (5), if air services, including incidental services,
are provided or made available by a subsidiary of the Corporation, the
Corporation has the duty to ensure that any of the subsidiary’s customers can
communicate with the subsidiary in respect of those services, and obtain
those services from the subsidiary, in either official language in any case
where those services, if provided by the Corporation, would be required under
Part IV of the Official Languages Act to be provided in either official
language.
|
10. (1) La Loi sur les langues officielles s’applique
à la Société.
(2)
Sous réserve du paragraphe (5), la Société est tenue de veiller à ce que les
services aériens, y compris les services connexes, offerts par ses filiales à
leurs clients le soient, et à ce que ces clients puissent communiquer avec
celles-ci relativement à ces services, dans l’une ou l’autre des langues
officielles dans le cas où, offrant elle-même les services, elle serait
tenue, au titre de la partie IV de la Loi sur les langues officielles, à une
telle obligation.
|
[10]
Following arguments,
the judge concluded that the appellant was subject to an obligation of result under
section 10, not a mere obligation of means. While the former is met by delivering
a a specific and defined result, the later is met where
the debtor of the
obligation has acted with prudence and diligence with a view to obtaining the agreed
result.
[11]
On appeal,
the intervener, the Commissioner of Official Languages, submitted that the intensity
of the appellant’s obligation under subsection 10(2) of the ACPPA should not be
assessed in accordance with the Quebec civil law model, but rather on the basis
of the statutory framework established under Part IV of the OLA and section 20
of the Canadian Charter of Rights and Freedoms.
[12]
Relying on
a literal interpretation of section 10 and a comparative interpretation with sections
26, 28 and 29 of the OLA and subsections 705.43(1) and 705.43(2) of the Canadian
Aviation Regulations, SOR/96-443, the appellant argued that, no matter what
model is used, it was entitled to raise a due diligence defence to explain and
justify its failure to comply with section 10. In other words, the obligation
under section 10 is not absolute and does not entail absolute liability in case
of breach.
[13]
No matter
what the nature and intensity of the obligation under subsection 10(2) of the
ACPPA may be, and assuming, without deciding the point, that the appellant is
entitled to a due diligence defence, there is no evidence on record giving rise
to such a defence.
[14]
In fact,
nothing in the affidavit of Chantal Dugas in support of the appellant’s
submissions allows me to infer, much less conclude, that the appellant acted
with diligence so as to comply with the ACPPA and the obligations imposed on it
under subsection 10(2).
[15]
The
amendment adding the second subsection to section 10 of the ACPPA came into
force on July 7, 2000. However, the appellant and Air Ontario had known since
February 2000, when the bill to amend the SCPPA was tabled, that language
obligations would soon be imposed on Air Ontario, although I realize that they
did not know what the final content of those obligations would be: Appeal Record,
volume 1, page 196. However, the evidence on record does not show that the appellant
took any steps between February to June 2000 (when the bill was passed) to comply
with or enforce the language obligations imposed by the ACPPA.
[16]
Moreover,
when the bill was passed in June 2000, only 9 of Air Ontario’s 179 flight attendants had working knowledge
of French. In spite of that and the fact that subsection 10(2) of the ACPPA
came into force at the beginning of July, it was only on some unspecified date in
September 2000, after the incident involving the respondent, that the appellant
began offering intensive language training courses to its flight attendants.
[17]
As far as
the courses are concerned, the record does not contain any evidence about their
duration, frequency or availability or about how many participants registered
for them.
[18]
Finally,
there is no evidence on record to the effect that efforts were made to assign
the nine persons who had working knowledge of French to routes where the use of
French was required.
[19]
The due
diligence defence, which is well known in the context of regulatory offences
under penal law, requires more than passivity: see Lévis (City of) v.
Tétreault, [2006] 1 S.C.R. 420. At paragraph 30 of this unanimous judgment
of the Supreme Court, Lebel J. wrote, “The concept of
diligence is based on the acceptance of a citizen’s civic duty to take action
to find out what his or her obligations are”. Once those obligations are known,
they must be respected or precautions must be taken which a reasonable person
would have taken to respect them under the circumstances: ibidem, at
paragraph 15, R. v.Chapin [1979] 2 S.C.R. 121.
[20]
The
appellant has the burden of proving due diligence. Assuming without deciding
that such a defence was available, the appellant did not discharge that burden.
Analysis of the cross-appeal
[21]
The purpose
of awarding costs is limited to providing the party receiving them with partial
compensation: Sherman v. The Minister of National
Revenue, 2004
FCA 29, at paragraph 8. Under Rule 407 of the Federal Courts Rules, they
are assessed in accordance with Column III of the table in Tariff B. Tariff B
is a compromise between awarding full compensation to the successful party and
imposing a crushing burden on the unsuccessful party. Column III concerns cases
of average or usual complexity: ibidem, paragraphs 8 and 9.
[22]
I do not
consider it appropriate to derogate from the principle of Rule 407 and proceed
as the respondent did in Federal Court and on appeal by calculating costs
according to Column V of the table in Tariff B. The nature and content of the issues
do not warrant derogation from this principle.
[23]
In
addition, the respondent is not a lawyer and cannot receive legal fees, including
those specified in the Tariff.
[24]
However, given
the three-fold objective of costs, i.e. providing compensation, promoting
settlement and deterring abusive behaviour, case law has acknowledged that it
is appropriate to award some form of compensation to self-represented parties,
particularly when that party is required to be present at a hearing and
foregoes income because of that: see Sherman v. Minister of National Revenue,
[2003] 4 FCA 865. However, the compensation awarded may at best be equal to
what the party could have obtained under the Tariff if it had been represented
by a lawyer: see Sherman, supra, 2004 FCA 29, at paragraph 11. It
is generally a fraction of that amount. This is what the Federal Court judge
did.
[25]
I do not
see in the award of $5,375.95 any error in the judge’s exercise of his
discretion which would warrant or require our intervention. The $1,876.95 in disbursements
were incurred for the proceedings before the Federal Court. The amount awarded
by the judge was less than the amount of disbursements actually incurred by the
respondent. The judge was bound by the terms of the Ontario Superior Court’s orders
dated April 1,
2003, and
September 30, 2004, ratifying the Consolidated Plan of Reorganization, Compromise
and Arrangement: see In the Matter of the Companies’ Creditors Arrangement,
C.S. Ont., docket No. 03-CL-4932. The respondent could not be compensated for
the time spent and the disbursements incurred before September 30, 2004.
[26]
As far as
the disbursements for this appeal are concerned, the respondent submitted a
claim in the amount $284.62 to which he is entitled. He claims costs in an
amount of $10,800 calculated, as already mentioned, according to Column V of
the table in the Tariff. This amount includes some 63 units for legal fees
which he cannot claim and 10 units for the assessment of these fees. Since I
plan to award a lump sum, no amount may be awarded for the assessment of costs.
[27]
However,
the respondent was required to defend himself on appeal. He had to analyze the
appellant’s memorandum and prepare a written reply. To say the least, the appellant
was not stingy with the written material it produced: two voluminous binders of
legislation; four binders of authorities, which were even more voluminous; and
seven impressive binders for the Appeal Record, all for an appeal based on a due
diligence defence not supported by the evidence. Even with substantial
compensation, the respondent, who legitimately and successfully asserted quasi-constitutional
rights, will continue pay the price for having to fight an appeal that seems
far more oppressive than deserving.
[28]
There is
no doubt that the respondent had to devote time and energy to defending
himself, not to mention the fact that he had to be present in Court to answer
the oral arguments made by the opposing party. I am of the opinion that in this
appeal it is necessary to derogate from Rule 407 and award costs according to Column
V. Considering Rules 400(3)(a) (result of the proceeding) and 400(3)(i)
(any conduct of a party that tended to unnecessarily lengthen the duration of
the proceeding), as well as the regulatory and deterrent functions of costs, I
would award the respondent the disbursements claimed, namely, $284.62 plus
costs established at $7,000 for a total of $7,284.62.
Conclusion
[29]
I would
dismiss the appeal with costs established at $7,284.62, including disbursements,
and I would dismiss the cross-appeal.
“Gilles
Létourneau”
“I
concur.
Alice
Desjardins J.A.”
“I
concur.
Marc
Noël J.A.”
Certified
true translation
Michael
Palles
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