Canada (Commissioner of Official Languages) (Re), docket T-541-97

     T-541-97

OTTAWA, ONTARIO, THIS 9th DAY OF JULY 1997

PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER

IN THE MATTER of an application to the Federal Court under section 18.3 of the Federal Court Act, R.S.C. 1985, c. F-7, referring three questions of law arising before the Official Languages Commissioner in the course of his investigation into 63 complaints filed by various complainants since January 1, 1996, under section 58 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), concerning Air Canada's regional carriers.

     REFERENCE BY THE

     COMMISSIONER OF OFFICIAL LANGUAGES

     (section 18.3 of the Federal Court Act and

     Rule 1501 of the Federal Court Rules)

     ORDER

     The motion is dismissed.

                                 Danièle Tremblay-Lamer

                                 JUDGE

Certified true translation

C. Delon, LL.L.

     T-541-97

IN THE MATTER of an application to the Federal Court under section 18.3 of the Federal Court Act, R.S.C. 1985, c. F-7, referring three questions of law arising before the Official Languages Commissioner in the course of his investigation into 63 complaints filed by various complainants since January 1, 1996, under section 58 of the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), concerning Air Canada's regional carriers.

     REFERENCE BY THE

     COMMISSIONER OF OFFICIAL LANGUAGES

     (section 18.3 of the Federal Court Act and

     Rule 1501 of the Federal Court Rules)

     REASONS FOR ORDER

TREMBLAY-LAMER J.

     This is a motion by Air Canada, Air Nova, Air Ontario, Air Alliance, Air BC Limited and NTW Airways Limited (the "applicants") for an order of the Court dismissing the reference filed by the Commissioner of Official Languages of Canada and dismissing the application for directions filed on the same day.

THE FACTS

     The Commissioner of Official Languages of Canada has received a number of complaints since 1988 concerning the language-related duties of Air Canada's regional carriers. He filed a final report concerning those complaints on October 10, 1996. Given the dispute that had arisen respecting the applicability of the Official Languages Act¹ (the "O.L.A.") to the regional carriers affiliated with Air Canada, the Commissioner concluded that his recommendations had to be temporarily stayed until the Federal Court disposed of the dispute upon the question being referred to that Court.

     On November 21, 1996, having regard to the deadline set out in the O.L.A. for instituting such proceedings (60 days from the date the report was filed), the Commissioner, with the consent of one of the complainants, brought proceedings against Air Canada under Part X of the Official Languages Act alleging that Air Canada had failed to meet its obligation to ensure that a third party acting on its behalf, in this instance Air Ontario, complied with the duties in respect of language set out in Part IV of the O.L.A. in the provision of services to and communications with the public.

     Between January 1, 1996 and March 19, 1997, the Commissioner received 63 new complaints concerning the language-related duties of Air Canada's regional carriers. Eleven of those complaints were filed after the date on which the Commissioner brought proceedings under Part X of the O.L.A. In his report dated March 19, 1997, the Commissioner made no finding as to the merits of the 63 complaints.

     He noted that he apparently could not make recommendations in respect of the language-related duties set out in the O.L.A. for as long as Air Canada continued to deny that its regional carriers were subject to that Act. He accordingly concluded that a question had to be referred to the Federal Court of Canada, Trial Division, under subsection 18.3(1) of the Federal Court Act², which he did on March 26, 1997. The Commissioner is asking this Court to rule in respect of the following questions:

[translation]

(1)      Are Air Canada's affiliates or "regional carriers", which are one hundred per cent controlled by Air Canada (a corporation subject to the Official Languages Act pursuant to section 10 of the Air Canada Public Participation Act), subject to the provisions of the Official Languages Act, and specifically of Part IV thereof concerning services to the public, by virtue of section 3 of that Act?

(2)      In the alternative, and if the answer to the first question is no, are the affiliates one hundred per cent owned by Air Canada, or "Air Canada's regional carriers", "another person or organization acting on its behalf" within the meaning of section 25 of the O.L.A.?

(3)      If the answer to the second question is yes, must Air Canada ensure, in accordance with section 25 of the O.L.A., that its regional carriers comply with the duties set out in Part IV of that Act concerning services to the public on the same basis as itself and, if that is the case, what methods must it use to do so?

     On the same day, the Commissioner filed an application for an order of this Court giving directions as to, inter alia, the composition of the record on which the reference would be heard, whether the parties would be able to present affidavit evidence and, more generally, the conduct of the proceedings.

     On June 2, 1997, the applicants filed a motion to have the application for a reference and directions summarily dismissed on the ground that the application did not meet the tests first laid down by the Federal Court of Appeal in Re: Public Service Staff Relations Board³ and reaffirmed by Pratte J.A., writing for the Court, in In Re: Immigration Act.⁴

ANALYSIS

     Since the decision in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A),⁵, it has been clearly settled that an originating notice of motion may be summarily dismissed only if it is plainly and obviously irregular and so only in very exceptional cases. The Federal Court of Appeal, per Strayer J.A., held that "the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself".⁶

     The applicants relied on the decision of the Court of Appeal in Re Rosen⁷ in respect of the power of the Trial Division to summarily dismiss a reference. However, in that decision the issue was not a reference under section 18.3 of the Federal Court Act, but a reference under subsection 28(4). On this point, the applicants fail to note that section 52 of the Federal Court Act gives the Court of Appeal the power to quash any proceedings it considers to be an abuse of process or obviously without merit. While it is settled, under Rule 419 of the Federal Court Rules,⁸ that the Trial Division has similar power in respect of proceedings in the nature of an action, the situation is different in respect of proceedings instituted by originating notice of motion. This is what the Federal Court of Appeal held in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.),⁹ which, it must be recalled, was decided some time after Re Rosen.¹⁰

     Contrary to what was argued by counsel for the applicants, the reference procedure set out in section 18.3 is not, in my view, an exception to the rule set out in David Bull Laboratories (Canada) Inc.¹¹ since it is in the nature more of proceedings instituted by originating notice of motion than of an action. Another factor that militates in support of applying the principle established by the Federal Court of Appeal in David Bull Laboratories (Canada) Inc.¹² is the fact that, under section 18.4 of the Federal Court Act, an application for a reference under section 18.3 shall be heard and determined in a summary way. Lastly, in such a reference, evidence is given by way of affidavit and a single judge decides the application on the merits.

     Accordingly, I am of the view that it would not be appropriate to summarily dismiss the Commissioner's reference at this stage, unless this were an exceptional case in which it was plain and obvious that the impugned pleading was without merit.

     It seems to me that when I come to determining whether this is the case in this instance, it would be advisable first to consider the tests that the Federal Court of Appeal had developed in respect of references under subsection 28(4) of the Federal Court Act, which has since been repealed. Those tests are summarized as follows in In Re: Immigration Act.¹³

The court's jurisprudence clearly establishes that a question of law, jurisdiction or procedure may not be the subject of a reference under s. 28(4) of the Federal Court Act unless the following conditions are fulfilled:

1.      the issue must be one for which the solution can put an end to the dispute that is before the tribunal;

2.      the issue must have been raised in the course of the action before the tribunal that makes the reference;

3.      the issue must result from facts that have been proved or admitted before the tribunal; and

4.      the issue must be referred to the court by an order from the tribunal that, in addition to formulating the issue, shall relate the observations of fact that gave rise to the reference.

     In my view, these tests must be interpreted cautiously and having regard to the amendments to the legislation. While the former subsection 28(4) of the Federal Court Act applied only to bodies or tribunals exercising quasi-judicial powers, the new section 18.3 applies, on the contrary, to any body that meets the definition of "federal board, commission or other tribunal". That expression is defined very broadly in section 2 of the Federal Court Act. Thus a reference under section 18.3 may be validly filed by a body that exercises administrative powers. It seems to me that we must take this new situation into account. It is well settled in Canadian administrative law that bodies that exercise administrative powers need not offer such extensive procedural guarantees as must bodies that exercise judicial or quasi-judicial powers. As well, the nature of the evidence required may also differ, having regard to the powers of the body in issue.

     Thus the tests set out in In Re: Immigration Act¹⁴ will rather serve as a guide and will have to be applied flexibly in order to adapt them to the context of section 18.3.

     Does the answer to the questions raised in the reference filed by the Commissioner resolve the dispute? In Martin Service Station Ltd. v. M.N.R.,¹⁵ the Court held, in a reference under subsection 28(4), first, that the question of law to be determined must not be academic, and second, that a possible answer to the question be decisive of the matter. In the instant case, it is plain that at a minimum a negative answer would be decisive of the matter since if this Court found that the O.L.A. cannot apply, the Commissioner, who would have no jurisdiction, would have no choice but to close the 63 cases in issue.

     There is no doubt that the second test has been met since no one can argue that the question was not raised before the Commissioner.

     I turn now to the third test. Given the embryonic state of the case, I cannot say that all of the facts relevant to the 63 complaints have been proved or admitted before him. Nonetheless, having regard to the type of body in question, I am of the opinion that the facts which the Court has had the benefit of learning to date, which are set out in the report of March 19, 1997, filed with the reference, are sufficient to prevent summary dismissal of the reference. I am not saying that the evidence that is now in the record is complete and perfect, I am merely saying that it will be more appropriate to make an objection with respect to the sufficiency of the facts proved when the reference itself comes to be heard.

     The fourth test has also been met. The reference relates the facts that gave rise to the reference, as set out in the Commissioner's report of March 19, 1997.

     Accordingly, I cannot conclude that this reference is plainly and obviously irregular. I do not believe that this is an exceptional situation in which I might be justified in summarily dismissing the application brought by the Commissioner. The motion is therefore dismissed.

OTTAWA, ONTARIO

This 9th day of July 1997

                                 Danièle Tremblay-Lamer

                                 JUDGE

Certified true translation

C. Delon, LL.L.

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO:      T-541-97

STYLE OF CAUSE:      reference by the Commissioner of Official Languages v. Air Canada

PLACE OF HEARING:      Ottawa, Ontario

DATE OF HEARING:      June 30, 1997

REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER

DATED:      July 9, 1997

APPEARANCES:

Ingride Roy                  FOR THE COMMISSIONER OF OFFICIAL LANGUAGES

François Lemieux                  FOR AIR CANADA ET AL.

Martha Healey                  ("THE AIR CARRIERS")

Alain Préfontaine                  FOR THE ATTORNEY GENERAL OF CANADA

SOLICITORS OF RECORD:

Commissioner of Official Languages              FOR THE COMMISSIONER OF

Ottawa, Ontario                  OFFICIAL LANGUAGES

Osler, Hoskin & Harcourt                  FOR AIR CANADA ET AL.

Barristers and Solicitors                  ("THE AIR CARRIERS")

Ottawa, Ontario

George Thomson                  FOR THE ATTORNEY GENERAL

Deputy Attorney General of Canada              OF CANADA

Ottawa, Ontario

__________________

¹      R.S.C. 1985, c. 31 (4th Supp.), as amended.

²      R.S.C. 1985, c. F-7, as amended.

³      (1973), 38 D.L.R. 437 (F.C.A.).

⁴      (1991), 137 N.R. 64 (F.C.A.).

⁵      [1995] 1 F.C. 588 (C.A.).

⁶      Ibid., at page 597.

⁷      [1987] 3 F.C. 238 (C.A.).

⁸      C.R.C. 1978, c. 663, as amended.

⁹      Supra note 5, at page 596.

¹⁰      Supra note 7.

¹¹      Supra note 5.

¹²      Ibid.

¹³      Supra note 4.

¹⁴      Ibid.

¹⁵      [1974] F.C. 398 (C.A.).