Air Canada v. Canada (Commissaire Aux Langues Officielles), docket A-520-97

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docket A-520-97

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Date: 19990505

Docket: A-520-97

Ottawa, Ontario, Wednesday, May 5, 1999.

Coram: DÉCARY J.A.

LÉTOURNEAU J.A.

NOËL J.A.

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.

BETWEEN:

AIR CANADA, AIR NOVA, AIR ONTARIO,

AIR ALLIANCE, AIR BC LIMITED AND

NWT AIRWAYS LIMITED

Appellants

- and -

COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA

Respondent

- and -

ATTORNEY GENERAL OF CANADA

Intervener

JUDGMENT

The appeal is dismissed without costs, on the understanding that:

Page: 2

1. by consent of the parties, there will be a reference with respect to Question 1, which is restated as follows:

1. Are Air Canada"s "regional carriers", as wholly-owned subsidiaries of Air Canada Corporation (a corporation subject to the Official Languages Act (OLA) pursuant to section 10 of the Air Canada Public Participation Act), subject to the provisions of the OLA, and specifically of Part IV thereof concerning services to the public, by virtue of section 3 of that Act?

2. the reference application and motion for directions with respect to Question 2 will be referred to a judge of the Trial Division for determination;

3. the Commissioner has withdrawn Question 3.

Robert Décary

J.A.

Certified true translation

Peter Douglas

Date: 19990505

Docket: A-520-97

Coram: DÉCARY J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

AIR CANADA, AIR NOVA, AIR ONTARIO,

AIR ALLIANCE, AIR BC LIMITED AND

NWT AIRWAYS LIMITED

Appellants

- and -

COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA

Respondent

- and -

ATTORNEY GENERAL OF CANADA

Intervener

Hearings held at Ottawa, Ontario, on Tuesday, May 4, 1999,

and Wednesday, May 5, 1999.

Judgment delivered from the bench at Ottawa, Ontario, on Wednesday, May 5, 1999.

REASONS FOR JUDGMENT OF THE COURT BY: DÉCARY J.A.

Date: 19990505

Docket: A-520-97

Coram: DÉCARY J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

AIR CANADA, AIR NOVA, AIR ONTARIO,

AIR ALLIANCE, AIR BC LIMITED AND

NWT AIRWAYS LIMITED

Appellants

- and -

COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA

Respondent

- and -

ATTORNEY GENERAL OF CANADA

Intervener

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Ottawa, Ontario,

on Wednesday, May 5, 1999)

DÉCARY J.A.

[1] This is an appeal brought by Air Canada Corporation, Air Nova, Air Ontario, Air Alliance, Air BC Limited and NWT Airways Limited (the appellants) against a decision by the Trial Division¹ refusing to summarily dismiss the reference application filed by the Commissioner of Official Languages for Canada (the Commissioner) and an additional motion for directions filed on the same day.

[2] The facts at the root of this case are very straightforward. For about ten years now, the Commissioner has been receiving complaints from members of the public against Air Canada with respect to Air Canada"s regional carriers. The Commissioner has attempted to investigate the facts at the root of those complaints, but according to him, Air Canada has systematically stood in the way of those investigations on the ground that the complaints have more to do with the regional carriers, which are distinct legal entities from Air Canada in its view.

[3] Given the deadlock resulting from Air Canada"s position, the Commissioner found it expedient to prepare a lengthy report on March 19, 1997, [TRANSLATION] "concluding that a reference to the Federal Court was necessary", and to file in the Registry of the Trial Division of this Court a reference application under section 18.3 of the Federal Court Act² (the Act) and former Federal Court rules 1500 et seq.

[4] That reference application refers to the above-mentioned report and asks the Court to answer the following three questions:

(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 (OLA) pursuant to section 10 of the Air Canada Public Participation Act), subject to the provisions of the OLA, 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 OLA ?

(3) If the answer to the second question is yes, must Air Canada ensure, in accordance with section 25 of the OLA, 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?

[5] The reference application is accompanied by a motion for directions regarding [TRANSLATION] "the material that will constitute the case to be determined on the reference, and particularly whether interested parties may file affidavits to set out the facts at the root of this reference".³

[6] The reference application was filed on March 26, 1997. More than two months later, the appellants filed a terse motion, unsupported by affidavit, for summary dismissal of the reference application.

[7] At the hearing in the Trial Division before Madam Justice Tremblay-Lamer, it became apparent that the appellants were essentially arguing that two of the conditions precedent to the hearing of a reference had not been met:⁴ the issues raised were not likely to put an end to the dispute before the Commissioner, and none of the facts relevant to the issues raised by the reference were proved or admitted.

[8] The Trial Division judge refused to summarily dismiss the reference application. She held that it would be premature to do so, based on this Court"s judgment in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. ,⁵ which emphasized the Court"s policy of entertaining motions to strike out summary proceedings only exceptionally, where the impugned summary proceeding was "clearly improper".

[9] Turning to consider whether the reference application was "clearly improper", the judge was of the view that the conditions applied up to that point in decisions of the Court would have to be applied flexibly, having regard to statutory amendments that, in 1992, opened the way to references by a "federal board, commission or other tribunal" that did not exercise judicial or quasi-judicial powers and with respect to which it therefore became difficult to apply tests developed in the context, for example, of adversarial proceedings. She then held, with respect to the first condition, "that at a minimum a negative answer would be decisive of the matter since if this Court found that the [Official Languages Act ] cannot apply, the Commissioner, who would have no jurisdiction, would have no choice but to close the 63 cases in issue".⁶ With respect to the third condition, she held:⁷

. . . 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.

[10] The argument grew simpler before us. Counsel for the appellants acknowledged that if the words "Air Canada"s "regional carriers", as wholly-owned subsidiaries of Air Canada Corporation" replaced the words "Air Canada"s affiliates or "regional carriers", which are one hundred per cent controlled by Air Canada", he would accept Question 1 as the subject of a reference. The Commissioner agreed with this proposal. As a result, the argument is closed with respect to Question 1, which from now on will read:

[11] For her part, counsel for the Commissioner acknowledged that Question 3 did not really lend itself to a reference, and withdrew it. Accordingly, Question 3 is no longer part of the case.

[12] As a result, only Question 2 remains to be considered. This question obviously assumes the existence of facts that have not yet been alleged by the Commissioner, nor denied by the appellants, naturally. The Court can assume at this point that the facts the Commissioner will put forward further to any directions the Court might issue will essentially be those he apparently discovered during his investigation and to which he refers in his report. At this point, however, the Court cannot assume that the appellants will dispute those facts when given the opportunity to do so. In short, the Court does not yet know whether there will be any admitted or undisputed facts, and if so, whether they will be sufficient to warrant a reference.

[13] Here it will be worthwhile to recall Mr. Justice Mahoney"s remarks in Berneche v. Canada ,⁸ which involved rule 474 (Determination of a Question of Law):

While the first requirement is often stated in terms of an agreement or admission of facts because that is the context in which the application is being considered, what is required is that the facts material to the question of law not be in dispute. That does not require the acquiescence of all parties. It is a conclusion for the judge to draw and I see no reason whatever why that conclusion cannot be drawn from the entire pleadings of the party respondent to the application on the assumption that what has been pleaded is true. Nor do I see any reason why an issue estoppel cannot be taken into account in determining whether facts are in dispute.

In our view, those remarks apply equally to rules 1501 et seq. (References), with appropriate adjustments. Since the reference in the case at bar concerns a question of law and jurisdiction, in order for the reference procedure to work properly there must be no real argument between the parties as to the material facts that will form the basis for the answers the Court is asked to give. It is therefore premature, when the Court has no idea what the appellants" position might be, to conclude that the parties will be unable to agree on a joint statement of facts or, alternatively, that after seeing and weighing the evidence the parties put forward, the judge hearing the reference application will not be satisfied that there are enough facts in the record to proceed with the reference.

[14] The appeal will accordingly be dismissed"without costs, since the Commissioner did not claim any"on the understanding that:

1. by consent of the parties, there will be a reference with respect to Question 1, which is restated as follows:

2. the reference application and motion for directions with respect to Question 2 will be referred to a judge of the Trial Division for determination;

3. the Commissioner has withdrawn Question 3.

Robert Décary

J.A.

Certified true translation

Peter Douglas

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.: A-520-97

APPEAL FROM A JUDGMENT OF THE TRIAL DIVISION DATED JULY 9, 1997. FILE NO. T-541-97.

STYLE OF CAUSE: In the matter of an application to the

Federal Court etc.

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: May 4 & 5, 1999

REASONS FOR JUDGMENT OF THE COURT (Décary, Létourneau, Noël JJ.A.)

DELIVERED FROM THE BENCH BY: Décary J.A.

APPEARANCES:

Simon Potter for the appellants

Annick Désy

Ingride Roy for the Office of the Commissioner of

Daniel Mathieu Official Languages

Alain Préfontaine for the Attorney General of Canada

SOLICITORS OF RECORD:

Ogilvy Renault for the appellants

Montréal, Quebec

Ingride Roy for the Office of the Commissioner of

Counsel to the Commissioner Official Languages

Office of the Commissioner of Official Languages

Ottawa, Ontario

Morris Rosenberg for the Attorney General of Canada

Deputy Attorney General of Canada

Ottawa, Ontario

__________________

¹ Re Air Canada (1997), 144 F.T.R. 161.

² R.S.C., 1985, c. F-7, as amended.

³ A.B., at p. 39.

⁴      Mr. Justice Pratte spelled out those conditions in Re Immigration Act (1991), 137 N.R. 64, at p. 65 (F.C.A.):
     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.
     See also Reference re Public Service Staff Relations Act, [1973] F.C. 604 (C.A.).

⁵ [1995] 1 F.C. 588 (C.A.).

⁶ A.B., at p. 64.

⁷ Ibid., at p. 65.

⁸ [1991] 3 F.C. 383, at pp. 388-89 (C.A.), Mr. Justice Mahoney. See also Perera v. Canada (1998), 158 D.L.R. (4th) 341, at pp. 347-48 (F.C.A.).

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Air Canada v. Canada (Commissaire Aux Langues Officielles), docket A-520-97

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