Date: 19990514
Docket: A-409-98
Coram: DÉCARY J.A.
LÉTOURNEAU J.A.
NOËL J.A.
Between:
AIR CANADA
Appellant/Respondent
- and -
THE COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA
Respondent/Applicant
Heard at Ottawa (Ontario) on Wednesday, May 5, 1999.
Judgment delivered at Ottawa (Ontario) on Friday, May 14, 1999.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
Docket: A-409-98
| Coram: DÉCARY |
| LÉTOURNEAU |
| NOËL, JJ.A. |
Between:
AIR CANADA
Appellant/Respondent
- and -
THE COMMISSIONER OF OFFICIAL LANGUAGES FOR CANADA
Respondent/Applicant
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] On September 13, 1996, the Commissioner of Official Languages for Canada ("the Commissioner"), with the consent of a complainant, Mr. Robert Jolette, moved for a remedy against Air Canada under paragraph 78(1)(a ) of the Official Languages Act1 ("the Act").
[2] Mr. Jolette had filed four complaints against Air Canada in March 1994, a fifth complaint in April 1994 and a sixth in October 1994. The only issues before us in this appeal from a decision of Mr. Justice Dubé2 are the following: (1) What is the status of the aforementioned complaints, in light of the fact that they were declared "closed" or "closed with follow-up" by the Commissioner at some point in 1994 and 1995? (2) If these complaints were still active, did the
Page: 2
Commissioner conduct the investigation prescribed by subsection 58(1) of the Act? Dubé J. answered the first question in the affirmative. The second question does not appear to have been put before him.
| The first question: "complaint closed", |
| "complaint closed with follow-up". |
[3] Air Canada"s counsel conceded at the hearing that this was a question of fact. But it was Dubé J."s finding of fact that, notwithstanding the unfortunate expression used by the Commissioner ("complaint closed" in the case of the initial complaints, "complaint closed with follow-up" in the case of the sixth complaint) to describe what he says is now described as "[translation ] unresolved complaints", the complaints in question were not closed complaints and that his investigation in regard to them was only stayed. So the issue is whether there was sufficient evidence on the record to support Dubé J."s conclusions.
[4] Dubé J. could certainly make the finding he did in regard to the sixth complaint. The letter sent to the complainant by the Commissioner on February 7, 1995 said, for example:3
[Translation] Since the Company has taken corrective measures to address your complaint, we expect to close the file. However, you may be assured that we will pursue the issue of the announcements in the context of our on-site investigation. I will be happy to inform you of the results of this investigation.
And the fax that the Commissioner sent to Air Canada on February 8, 1995 read:4
. . . we will be closing this file. However, we will be doing a follow-up in the context of the on-site review we plan to conduct at the airport in February.
When one considers the train of events, which I need not narrate here, and when we know, from the affidavit of Mr. Charlebois, the group leader at the Office of the Commissioner of Official Languages under the authority of the director general of investigations, that this procedure by the Commission means that "[Translation ] the complaint file is then closed subject to the results of the follow-up that the Commissioner will undertake to verify the implementation of these undertakings",5 one can only conclude that Dubé J. had grounds to find that the sixth complaint was a "complaint with follow-up", hence a complaint that could be reactivated, with the actual knowledge of Air Canada.
[5] The situation differs in regard to the first five complaints, however. The documentary record as it pertains to them is rather thin, and is limited for whatever purpose it may serve to this memorandum that the Commissioner sent to Air Canada on July 18, 1994:6
. . . As a result of the commitments made, we are now closing these files.
Nowhere is there any indication on the record that Air Canada was informed that these complaints, albeit closed, would result in a follow-up. Furthermore, the aforementioned letter by the Commissioner to the complainant of February 7, 1995 clearly indicates that the complaints prior to May 1994 had been definitively closed by the Commissioner, who had been satisfied by the corrective measures taken in respect of them by Air Canada. Only when it was observed, upon receipt of new complaints, that these corrective measures had not produced the anticipated results, did the Commissioner revisit the issue with these new complaints.
[6] This situation is not unlike the one recently encountered by this Court in Information Commissioner of Canada v. Minister of National Defence,7 in which the Information Commissioner himself considered as closed the complaints he had listed as closed, saying he was satisfied with the undertakings made in respect of them by the Minister of National Defence. If, once the complaints were closed in this way, it turned out that the Minister was not complying with his undertakings, new complaints had to be drawn up.
[7] In this case, the Commissioner has himself established a procedure under which complaints are active, closed, or unresolved and subject to being reactivated. In as much as the evidence on the record allows for the conclusion that the sixth complaint was unresolved, the evidence requires the conclusion that the first five complaints were closed.
[8] At the hearing, in fact, counsel for the Commissioner acknowledged that the argument over the first five complaints was to some degree academic, once the sixth complaint could proceed. Indeed, section 79 of the Act allows the Commissioner, by way of exception, in the context of court proceedings under Part X of the Act, to put in evidence information relating to similar complaints made against Air Canada. In so far as the first five complaints had worked their way into the file on the sixth complaint through the back door, counsel said he was satisfied and conceded for all intents and purposes that the first five complaints had indeed been "closed".
[9] The appeal on this point must therefore be allowed in part: the court action taken by the Commissioner with the consent of the complainant may proceed only in respect to the sixth complaint, the one numbered 1479-94-A2.
| The second question: the investigation concerning the complaints |
[10] Sections 58, 64(1), 77 and 78 of the Act indicate that a complaint must be addressed to "a particular instance or case", that the Commissioner is to investigate that particular case and that the Commissioner shall inform the complainant "in such manner . . . as the Commissioner thinks proper" of the results of the investigation. Strictly speaking, there is no requirement under the Act that the Commissioner "report" to the complainant. The "report", as such, is instead to be sent to the President of the Treasury Board and the deputy head of the federal institution concerned (subsection 63(1)).
[11] In this case, the Commissioner combined eighteen complaints for investigation purposes. He identified these complaints in his report, made a summary of them, says he reviewed them and made a number of recommendations that could be characterized as systemic. It is true that he did not specifically discuss each of the complaints in his report, and that his report does not contain any "results" as such. However, subsection 64(1) of the Act does not require that the Commissioner formally arrive at any "results" in his report. In the instant case, the Commissioner, "pursuant to section 64(1) of the Official Languages Act", sent his "final investigation report" to Mr. Jolette on July 18, 1996, in a letter from which I excerpt the following:8
[Translation]
. . .
As you already know, we invited all of the parties involved to respond to our results in April 1996 and we incorporated the essential items in their comments into Part VIII of the report.
. . .
Since your complaint concerns Part IV of the OLA, you may apply to the Court under section 77. The sixty-day period runs from the date on which you receive this letter.
Section 78 further provides that the Commissioner may himself apply to the Court for a remedy if he has the consent of the complainant.
. . .
[Emphasis added]
In doing this, the Commissioner was clearly informing the complainant that his complaint was justified and that he could now apply to the Court as provided by the Act.
[12] It would have been preferable, of course, if the Commissioner had taken the trouble to write in his report that he had reviewed each of the complaints and found that each was individually merited, but it may be inferred from the language of the report and the recommendations it contains that this is what the Commissioner did. The Commissioner might have been more exacting, but a lack of attention to detail is not in itself reason to overturn his decision. Furthermore, if I may focus on the sixth complaint, which was addressed to an announcement that Air Canada had allegedly not made in both official languages, the report contains the following passage:9
(iii) Announcements
CSSAs interviewed generally knew that announcements are to be made in both official languages. For this purpose, unilingual agents not only have access to the P.A. Booth for having announcements made in French, as mentioned earlier, but they also have access to the written French version of announcements on the computer screen for those who feel sufficiently at ease in the language to read from the prepared text. However, in addition to the three complaints received in 1994, we noted a unilingual English announcement for a flight on a designated bilingual route to Thunder Bay during our on-site observations.
The Commissioner therefore recommends that Air Canada:
| 6. establish, by May 15, 1996, a monitoring system to ensure that announcements are bilingual and emit reminders as required. |
[Emphasis added]
I do not think it is unreasonable to infer from this passage that the Commissioner found that the three complaints in question, including the one from this complainant, were justified.
[13] The powers of the Commissioner of Official Languages are unique in that the Act expressly allows him, under section 79, in the context of a court proceeding in relation to a particular instance or case, to file "information relating to any similar complaint". The proceeding does not cease to be an individual one, in that the complaint in question is the one that is the subject matter of the proceeding, but it was Parliament"s intention that the Court, which, under subsection 77(4), may "grant such remedy as it considers appropriate and just in the circumstances" (the same language that is found in subsection 24(1) of the Canadian Charter of Rights and Freedoms ), should be able to have before it an overall view, and thus an idea of the scope of the problem, if a problem exists.
[14] Another peculiarity of the Commissioner"s duties is that he has, on the one hand, an obligation, under subsection 63(1) of the Act, at the conclusion of each investigation, to report his "opinion and the reasons therefor" to the President of the Treasury Board and the federal institution concerned if he is of the opinion that some action should be taken and, on the other hand, the possibility, under subsection 63(3), to "make such recommendations as he thinks fit" in his report.
[15] Not surprisingly, in these circumstances, the Commissioner passes indistinctly from the particular to the general when he exchanges his investigator"s hat for the "reporter"s". This is not to say that he should not himself have made a distinction in the course of his investigation between the particular and the general; all I am saying is that he may have done so without expressly stating it. Some inferences are permitted in such cases that would perhaps not be allowed in other circumstances, provided the Court can be satisfied that the Commissioner did look into the particular case.
[16] The Act itself provides that a particular complaint may serve as the gateway into a federal institution"s system as a whole. This was Parliament"s intention, as a means of giving more teeth to an enactment, the Official Languages Act , which serves as a special tool for the recognition, affirmation and extension of the linguistic rights recognized by the Canadian Charter of Rights and Freedoms.
[17] In other words, this is an area in which an overly litigious approach is particularly inappropriate. The Act itself invites one to go beyond the particular case to the general, and a federal institution against which not one but several complaints are brought can hardly feign surprise or cry injustice if the Commissioner, in an investigation, in his report, in his findings, or in the context of a court proceeding, was quick to transform the argument on a particular case into a general argument.
[18] Throughout the investigation conducted by the Commissioner in 1995 and 1996 on Air Canada"s bilingual service at Lester B. Pearson International Airport in Toronto, the company was aware that Mr. Jolette"s sixth complaint was one of the complaints which the Commissioner was investigating. At no time " during the investigation, or when the Commissioner"s interim report was tabled in July 1995, or when the amended interim report was tabled in April 1996, or when the final report was tabled in July 1996 " did Air Canada object. In pleading a procedural defect, surprise and injustice, Air Canada is in reality, in the circumstances of this case, pleading ignorance of the law.
[19] The appeal shall therefore be allowed in part, but without costs, solely for the purpose of amending the trial judge"s order to read as follows:
| The motion on the preliminary arguments is allowed in regard to complaints 0463-94-A2, 0465-94-A2, 0484-94-A2, 0491-94-A2 and 0492-94-A2, and it is dismissed in regard to complaint 1479-94-A2. |
| "Robert Décary" |
| J.A. |
"I concur.
Gilles Létourneau, J.A."
"I concur.
Marc Noël, J.A."
Certified true translation
Bernard Olivier, LL.B.
__________________1 R.S.C. 1985 (4th Supp.), c. 31.
2 Commissionaire aux langues officielles du Canada v. Air Canada (1998), 152 F.T.R. 1.
3 A.R. Vol. I, p. 147.
4 A.R. Vol. I, p. 148.
5 A.R., Vol. I, p. 54.
6 A.R. Vol. 1, p. 139.
7 (April 19, 1999), A-785-96 (F.C.A.), unreported.
8 A.R. Vol. 2, pp. 301-02.
9 A.R. Vol. 2, pp. 285-86 [English text at p. 266].