Date: 19971231
Docket: T-1989-96
OTTAWA, ONTARIO, THE 31st DAY OF DECEMBER 1997
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA,
Applicant,
- and -
AIR CANADA,
Respondent,
- and -
NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS
UNION OF CANADA,
Intervenor.
ORDER
The respondent"s motion to strike with respect to the preliminary objections is dismissed.
J.E. DUBÉ
Judge
Certified true translation
Stephen Balogh
Date: 19971231
Docket: T-1989-96
BETWEEN:
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA,
Applicant,
- and -
AIR CANADA,
Respondent,
- and -
NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS
UNION OF CANADA,
Intervenor.
REASONS FOR ORDER
DUBÉ J.:
[1] An order was made by this Court on February 4, 1997 authorizing the respondent (Air Canada) to raise preliminary objections to the notice of an originating motion filed by the applicant (the Commissioner). As a result, this motion filed by Air Canada on March 18, 1997 raises six alternative preliminary objections asking the Court to strike out in part the motion made by the Commissioner on September 6, 1996 under section 78 of the Official Languages Act (the Act).1
1. Facts
[2] The Commissioner"s originating motion, which was filed with the consent of the complainant Paul Comeau, concerns Air Canada"s failure to provide ground services in the French language at the Halifax airport. The Commissioner asks this Court to declare that there is a significant demand for services in French in Air Canada"s office at the Halifax airport and that Air Canada is failing to discharge its duties under Part IV of the Act. Part IV establishes language-related duties for communications with and services to the public, including the travelling public, where there is significant demand.
[3] The Commissioner"s motion is supported by three affidavits filed by the complainant Paul Comeau and by Marcel Charlebois and Jeanne Renault.
[4] The affidavit of Paul Comeau describes the incidents and offences he himself witnessed at the airport in question. In his affidavit, Paul Comeau sets out the facts that led him to file two complaints against Air Canada with the Commissioner in 1994, and describes all the previous complaints he has filed since 1988 concerning Air Canada"s failure to provide ground services in French. Those complaints mostly concerned a failure to provide bilingual services at the check-in and ticket counters.
[5] Marcel Charlebois"s affidavit gives a general description of the complaints drawn to the Commissioner"s attention since the Act came into force in 1988. It also discusses the numerous occasions on which the Commissioner has intervened with Air Canada since that date, in particular in connection with complaints concerning the failure to provide French-language services at the airport in question. The affidavit also describes the systemic problem observed at that airport and lists the types of ground services concerned in the 26 separate complaints received since 1990. It also sets out the recommendations the Commissioner has made in his various reports concerning the airport since 1993, which have not been acted on.
[6] Jeanne Renault"s affidavit gives an overview of the problems encountered at the regional level and more specifically at the Halifax airport. It reviews the meetings and negotiations between Air Canada and the Commissioner"s regional representative. A detailed table of the complaints received against Air Canada in respect of the airport is also appended to her affidavit.
2. Air Canada"s position
[7] Air Canada submits that based on the scheme of the Act and the past judgments2 of this Court, relief sought in an action under Part X of the Act must be related to the circumstances of a complaint in respect of which the Commissioner has made a report or made recommendations. In the case at bar, the relief sought by the Commissioner exceeds the scope of the Act. The Commissioner is asking this Court for a mandatory order against all of Air Canada"s ground services at the Halifax airport and the designation of bilingual positions, whereas Paul Comeau"s complaints do not apply to all the ground services.
[8] Furthermore, the Act authorizes the Commissioner to apply for a court remedy following a specific complaint, an investigation by the Commissioner and a report with or without recommendations that gives the respondent the right to respond to any criticisms likely to be harmful to him or her.
[9] Air Canada submits that the Commissioner"s evidence based on the three affidavits in question has the inescapable effect of transforming this Court into a commission of inquiry into all the complaints made against Air Canada at the Halifax airport since 1988. Any documents relating to a complaint based on facts from before December 16, 1992 have a retrospective aspect, since the Regulations3 the Commissioner is relying on to establish the essential elements of significant demand did not come into force until that date. As a result, all the documents filed by the Commissioner in the case at bar are not directly related to Paul Comeau"s two complaints, are therefore not contemplated by the Act, are immaterial and impair the effective conduct of proceedings in the Court.
[10] Furthermore, the Commissioner"s documents may not refer to complaint files already "closed" by the Commissioner. Subsection 77(2) of the Act creates a court remedy for a dissatisfied complainant whose complaint is closed by the Commissioner. Since no complainant has applied for such a remedy as yet, the complaints in question have expired.
[11] Section 79 provides that in proceedings under Part X relating to a complaint against a federal institution, the Court may admit as evidence information relating to any similar complaint under the Act in respect of the same federal institution. In French, Parliament has used the words "plaintes de même nature". Thus, Air Canada submits, the complaint files must be current, active and under investigation.
[12] As a result, Air Canada submits that it is necessary to strike from the Commissioner"s application any references in the Commissioner"s documents to current complaints that, in the operational context of the services provided by Air Canada at the Halifax airport, are unrelated to the single file system at the airport"s check-in counter.
[13] In conclusion, Air Canada accordingly asks this Court to strike from the Commissioner"s application any evidence filed in the affidavits of Paul Comeau, Marcel Charlebois and Jeanne Renault that is not directly related to Paul Comeau"s two complaints, that refers to closed complaint files or that refers to any complaint currently under investigation that is unrelated to the single file system at the counter in question.
3. Issues
| [14] 1. Do those documents filed by the Commissioner in support of his motion that concern similar complaints and relate to all the ground services provided by Air Canada at the Halifax airport exceed the scope of the remedy provided for in the Act? |
| 2. May the Commissioner file complaints in evidence where the file has been closed? |
| 3. May the Commissioner file complaints in evidence that relate to situations that occurred before the Regulations came into force? |
4. Documents concerning similar complaints that relate
to all the ground services
[15] The point of departure is paragraph 78(1)(a), which reads as follows:
| 78. (1) The Commissioner may |
| (a) within the time limits prescribed by paragraph 77(2)(a) or (b), apply to the Court for a remedy under this Part in relation to a complaint investigated by the Commissioner if the Commissioner has the consent of the complainant. . . . |
[16] Air Canada"s position is therefore that the Commissioner may only apply for a remedy limited to facts relating to a specific complaint, the investigation of that complaint and the resulting reports and recommendations. In my view, this interpretation is too narrow and is inconsistent with the general objectives of the Act and its remedial and quasi-constitutional nature. The filing of a complaint and the complainant"s consent are preconditions for a remedy. On the other hand, the following provision, section 79, states that information relating to any "similar" complaint in respect of "the same federal institution" may be admitted as evidence. Section 79 reads as follows:
| 79. In proceedings under this Part relating to a complaint against a federal institution, the Court may admit as evidence information relating to any similar complaint under this Act in respect of the same federal institution. |
[17] This section is one of a kind and does not appear in other similar legislation. Parliament"s intention is clearly to present the courts with a full context. I therefore agree with the Commissioner"s position that the remedy is not limited to certain types of ground services listed in Paul Comeau"s two specific complaints but may apply to all ground services provided by Air Canada at the Halifax airport.
[18] In my view, the purpose of section 79 is to enable the Commissioner to prove to the Court that there is a systemic problem and that it has existed for a number of years. Unless all similar complaints are filed in evidence, the Court cannot assess the scope of the problem and the circumstances of the application.
[19] It is up to the judge presiding at the hearing on the merits of the motion to assess the probative force of all these facts or all this information in the context of more general considerations. It would be unwise at this preliminary stage to deprive that judge of additional information relating to the allegation of an absence of bilingualism in all the ground services provided by Air Canada at the Halifax airport. While it is true that the investigation was initiated by Paul Comeau"s two complaints, this does not close the door to additional information relating to similar complaints in respect of this federal institution at the Halifax airport.
[20] The admissibility in evidence of this additional information of similar complaints nevertheless does not transform the hearing into a public commission of inquiry. The complaints in question will be considered in connection with allegations of systemic conduct at that airport. This is not an inquiry, but a de novo application for a court remedy within the scope of the original complaints and the other similar complaints in respect of the same institution.
[21] It should be borne in mind that while some complaints filed under the Act may be purely personal (i.e. a training course denied an employee in his or her language), other complaints affect the general public (i.e. travellers in a public airport) and open the door to other very material information from other complainants. In the instant case, the purpose of the Commission"s participation is not to obtain an apology from Air Canada in order to satisfy Paul Comeau, but to ensure that Air Canada discharges its duties to the French-speaking travelling public.
[22] While it is true that the English version of paragraph 78(1)(a), supra, provides that the Commissioner "may apply to the Court for a remedy under this Part in relation to a complaint investigated by the Commissioner", the French version does not state that the remedy must be limited to the specific facts of a complaint. In interpreting a statute, both language versions are equally authoritative. The principle of equal authenticity guarantees that each of the two versions is of equal weight, as is clearly stated in section 13, which reads as follows:
| 13. Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative. |
5. Closed files
[23] Nothing in the Act indicates that information in closed files, namely files already considered by the Commissioner, cannot be reconsidered in reviewing similar complaints in respect of the same federal institution. The closed files in question in the case at bar were apparently not closed to the satisfaction of the complainants. The fact that those complainants did not avail themselves of the court remedy available to them under Part X of the Act does not render the material information contained in their files irrelevant or inadmissible. The Act draws no distinction between complaints that are "open" and those that are "closed".
[24] Furthermore, subsection 64(2) authorizes the Commissioner to follow up on his recommendations where in his opinion adequate and appropriate action has not been taken thereon within a reasonable time. Subsection 64(2) places no time limit on this follow-up by the Commissioner. There may be situations in which complaints are closed administratively after promises or commitments are received from the federal institution concerned. However, when the commitments are not honoured or other complaints are subsequently filed, the Commissioner can continue to deal with the unresolved problem.
6. Complaints relating to situations that occurred before the
Regulations came into force
[25] As mentioned supra, Air Canada submits that any documents relating to a complaint based on facts from before December 16, 1992, the coming into force date of the Regulations, have a retrospective aspect and are accordingly inadmissible.
[26] It is subsection 23(1) that the Commissioner must apply to determine whether there is "significant demand" for services in an official language. What "significant demand" means is defined by subsection 7(3) of the Regulations, which reads as follows:
| 7. (3) For the purposes of subsection 23(1) of the Act, there is significant demand for services to the travelling public, other than air traffic control services and related advisory services, from an office or facility of a federal institution in both official languages where the facility is an airport or the office is located in an airport and over a year the total number of emplaned and deplaned passengers at that airport is at least 1,000,000. |
[27] I agree with the Commissioner that even though subsection 7(3) was not in force before December 16, 1992, subsection 23(1), which was in force before that date, states that every federal institution that provides services or makes them available to the travelling public has the duty to do so in the official language requested where "there is significant demand for those services in that language". Subsection 23(1) reads as follows:
| 23. (1) For greater certainty, every federal institution that provides services or makes them available to the travelling public has the duty to ensure that any member of the travelling public can communicate with and obtain those services in either official language from any office or facility of the institution in Canada or elsewhere where there is significant demand for those services in that language. |
[28] The Act itself dates back to 1988. The Regulations in question merely establish standards to ensure that the administration of the Act is sound, so Air Canada had a duty to provide French-language services to the travelling public, where there was a significant demand for those services in French, even before the Regulations came into force. As a consequence, the Commissioner may file complaints and information in evidence that relate to situations that occurred before the Regulations came into force.
7. Conclusion
[29] Thus, to ensure that the judge presiding at the hearing on the merits can correctly assess the situation in light of all the material evidence, no reference or evidence filed by the Commissioner in the three affidavits mentioned above should be struck out.
[30] This motion to strike by Air Canada with respect to the preliminary objections must accordingly be dismissed.
J.E. DUBÉ
Judge
OTTAWA, ONTARIO
December 31, 1997
Certified true translation
Stephen Balogh
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1989-96
| STYLE OF CAUSE: COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA and AIR CANADA et al. |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: DECEMBER 16, 1997
REASONS FOR JUDGMENT BY DUBÉ J.
DATED: DECEMBER 31, 1997
APPEARANCES:
DANIEL MATHIEU FOR THE APPLICANT
FRANÇOIS LEMIEUX FOR THE RESPONDENT
SOLICITORS OF RECORD:
OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES
OTTAWA, ONTARIO FOR THE APPLICANT
OSLER, HOSKIN & HARCOURT
OTTAWA, ONTARIO FOR THE RESPONDENT
__________________1 R.S.C., 1985 (4th Supp.), c. 31.
2 St-Onge v. Office of the Commissioner of Official Languages (Can.) (1994), 83 F.T.R. 3, and St. Onge v. Canada (Office of the Commissioner of Official Languages), [1992] 3 F.C. 287 (C.A.).
3 SOR/92-48.