2012 FCA 246, 2012 FCA 246

[2013] 2 F.C.R. 155 A-358-11 2012 FCA 246 Air Canada ( Appellant ) v . Michel Thibodeau and Lynda Thibodeau ( Respondents ) and The Commissioner of Official Languages ( Intervener ) Indexed as: Thibodeau v. Air Canada Federal Court of Appeal, Pelletier, Gauthier and Trudel JJ.A.—Ottawa, April 25 and September 25, 2012. Official Languages — Appeal from Federal Court decision declaring that appellant breached duties under Official Languages Act,

Part IV, ordering number of remedies, including payment of damages to respondents, issuing general, structural orders — Decision rendered in context of respondents’ application under Act, s. 77(1) for violations of language rights occurring in course of international air flights — Respondents complaining to Commissioner of Official Languages of incidents that took place on two separate round trips between Canada, United States — Appellant submitting should not be ordered to pay any damages at all for three incidents at issue since Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montréal Convention or Convention), Art. 29 providing exclusive remedy for such breaches — Whether Montréal Convention, Art. 29 excluding respondents’ action in damages under Act,

Part IV for incidents occurring during international carriage; whether Federal Court entitled to issue general order against appellant to comply with Act,

Part IV dealing with obligations of federal institutions in area of communications with public, provision of services; whether Federal Court entitled to issue structural order against appellant — Federal Court’s judgment vitiated by error of law; could not award damages for three incidents that occurred during international carriage — Part of judgment dealing with entitlement to general order against appellant to comply with Act,

Part IV also vitiated by error of law — General order to comply with law should be granted only in exceptional circumstances — In present case, order, as drafted, not precise enough — Terms of order must be clear, specific — General order issued herein vague, lacking in specificity — As for structural order, not justified in light of evidence on record; could not stand because, inter alia, order imprecise, disproportionate with regard to prejudice suffered by respondents — Structural order not supported by careful assessment of facts, application of relevant legal principles — Thus, order constituting serious error in itself, exceeding normal role of courts — Appeal allowed.

Conflict of Laws — In appeal from Federal Court decision declaring that appellant breached duties under Official Languages Act,

Part IV, Federal Court of Appeal determining whether Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montréal Convention or Convention), Art. 29 excluding respondents’ action in damages under Act for incidents occurring during international carriage — While Federal Court correctly interpreting Montréal Convention, wrongly concluding that conflict of laws existing between Montréal Convention, Act; that the two legislative instruments could not be harmonized — Montréal Convention precluding award of damages for causes of action not specifically provided for therein, even when cause of action not arising out of risk inherent in air carriage — Although Montréal Convention not addressing all aspects of international air carriage, constituting complete code as concerns aspects of international air carriage expressly regulating — Montréal Convention, Art. 29 representing one circumstance to take into account when trial judge fashioning “appropriate and just” remedy under Act, s. 77(4) — No implicit conflict of laws in present case — Act, s. 77(4) flexible enough to allow

interpretation reconciling objectives with those of Convention, Art. 29 — Thus, Federal Court’s judgment vitiated by error of law; damages for three incidents that occurred during international carriage could not be awarded. This was an appeal from a Federal Court decision declaring that the appellant had breached its duties under

Part IV of the Official Languages Act and ordering a number of remedies, including payment of damages to the respondents and general and structural orders. The Federal Court issued the decision in response to an application by the respondents under subsection 77(1) of the Act for violations of their language rights that occurred in the course of international air flights.

The respondents had complained to the Commissioner of Official Languages that on two separate round trips between Canada and the United States, the appellant did not offer them the service in French to which they were entitled at each point of service in their itinerary. The Commissioner found that some of these complaints were justified. The grounds for complaint accepted by the Commissioner included not only in-flight services but also ground services.

In its appeal, the appellant submitted that it should not be ordered to pay any damages whatsoever for the three incidents that occurred during international air carriage since

Article 29 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montréal Convention or Convention) provides an exclusive remedy for such breaches. It also submitted that the Federal Court erred in law and in fact in rendering the general and structural orders found in the judgment. The issues were whether

Article 29 of the Montréal Convention excludes the action in damages brought by the respondents under

Part IV of the Act for incidents having occurred during international carriage; whether the Federal Court was entitled to issue a general order against the appellant to comply with

Part IV of the Act dealing with the obligations of federal institutions in the area of communications with the public and provision of services; and whether the Federal Court was entitled to issue a structural order against the appellant. Held , the appeal should be allowed. The Federal Court correctly interpreted the Montréal Convention. However, it wrongly concluded that there was a conflict of laws between the Montréal Convention and the Act and that the two legislative instruments could not be harmonized. The legislative instruments, properly construed, can be harmonized.

They can both be applied concurrently without producing an unreasonable result or one which fails to respect the objectives of each. In light of the Canadian and international case law relevant to

Article 29 of the

Convention that was cited herein, the Montréal Convention precludes the award of damages for causes of action not specifically provided for therein, even when the cause of action does not arise out of a risk inherent in air carriage. Although the Montréal Convention does not address all aspects of international air carriage, it constitutes a complete code as concerns the aspects of international air carriage that it expressly regulates, such as the air carrier’s liability for damages, regardless of the source of this liability. The purpose of the Montréal Convention is to provide for consistency of certain rules regarding the liability incurred during international air carriage.

Article 29 of the Montréal Convention represents one of the circumstances a trial judge must take into account when fashioning an “appropriate and just” remedy under subsection 77(4) of the Act; the judge is not supposed to view the former as an encroachment on the large remedial power granted to the courts by the latter. There is no implicit conflict of laws here. The cumulative application of the Convention and of the Act to the circumstances of the respondents does not produce an unreasonable or absurd result. Subsection 77(4) is flexible enough to allow an

interpretation reconciling its objectives with those of

Article 29 of the Convention. Such reconciliation does not in any way diminish the force of

section 82 of the Act regarding primacy. This approach does not deprive the respondents of all of their rights and remedies under the Act, except that they are not entitled to compensatory or non-compensatory damages for incidents occurring during international carriage where the Convention has full force. In addition, the appellant is at all times subject to

Part IV of the Act. Thus, the Federal Court’s judgment was vitiated by an error of law. It could not award damages for the three incidents that occurred during international carriage. The Federal Court’s judgment dealing with its entitlement to issue a general order against the appellant to comply with

Part IV of the Act was vitiated by an error of law. While the appellant cannot hide behind the general principle of exhaustion of remedies provided for by the Act, a general order to comply with the law, in whole or in part, should be granted only in exceptional circumstances. In this case, the order, as drafted, was not precise enough. The terms of the order must be clear and specific. The party needs to know exactly what has to be done to comply with the order. Even when read in the context of the institutional order accompanying it, the general order was still vague and lacking in specificity.

The structural order issued by the Federal Court was not justified in the light of the evidence on the record. It could not stand because, among other things, it was imprecise and disproportionate with regard to the prejudice suffered by the respondents. The order rendered against the appellant did not satisfy the criteria set by case law in determining whether a structural order is a just and appropriate remedy. The evidence in this case could not be described as substantial.

Moreover, the structural order was not supported by a careful assessment of the facts and the application of relevant legal principles, constituting a serious error in itself. A structural order is not a solution that is effective, realistic, and adapted to the facts of the case. The order exceeded the normal role of courts, which is to resolve disputes. As for the Federal Court’s objective of deterrence, it was well-served by the part of its judgment that remained unchanged.

The multi-faceted legal declaration against the appellant, the letter of apology and the damages for the incident that occurred inside the Toronto airport constituted a just and appropriate remedy in the circumstances. STATUTES AND REGULATIONS CITED Air Canada Public Participation Act , R.S.C., 1985 (4th Supp.), c. 35. Carriage by Air Act , R.S.C., 1985, c. C-26. Charter of Fundamental Rights of the European Union , [2000] OJ C 364/1. Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 , S.I. 2007/1895, art. 9.

Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, ss. 10(2), 23(1) , (2) , 58 , 63 , 65 , 77 (as am. by S.C. 2005, c. 41, s. 2 ), 78, 79, 81, 82. Official Languages (Communications with and Services to the Public) Regulations , SOR/92-48. Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air , [2005] OJ L 204/1, Art. 16.

TREATIES AND OTHER INSTRUMENTS CITED Convention for the Unification of Certain Rules Relating to International Carriage by Air , signed at Montréal, May 28, 1999, being

Schedule VI to the Carriage by Air Act , R.S.C., 1985, c. C-26, Arts. 17, 18, 19, 29. Convention for the Unification of Certain Rules Relating to International Carriage by Air , signed at Warsaw, October 12, 1929, being

Schedule I to the Carriage by Air Act , R.S.C., 1985, c. C-26, Art. 24. CASES CITED applied: Sidhu v. British Airways , [1997] 1 All E.R. 193 (H.L.) ; El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U.S. 155, 119 S. Ct. 662 (2d Cir. 1999); Stott v. Thomas Cook Tour Operators Ltd. & Ors , [2012] EWCA Civ 66 (BAILII); Canada (Attorney General) v. Jodhan , 2012 FCA 161 , 431 N.R. 144, affg 2010 FC 1197 , [2011] 2 F.C.R. 355, 223 C.R.R. (2d) 151, 380 F.T.R. 1. distinguished: Doucet-Boudreau v.

Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3, 218 N.S.R. (2d) 311, 232 D.L.R. (4th) 577; Quigley v. Canada (House of Commons) , 2002 FCT 645 , [2003] 1 F.C. 132, 43 Admin. L.R. (3d) 218, 220 F.T.R. 221. considered:

Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276, 243 D.L.R.(4th) 542, 22 Admin. L.R. (4th) 161; Air Canada v. Thibodeau, 2011 FCA 343, 425 N.R. 297; Air Canada v. Thibodeau, 2012 FCA 14;KLM Royal Dutch Airlines v. Morris, [2001] EWCA Civ 790 (BAILII), [2001] 3 All E.R. 126, [2001] 3 W.L.R. 351, [2002] Q.B. 100;King v. Bristow Helicopters Ltd. (Scotland); In Re M, [2002] UKHL 7, [2002] 2 A.C. 628, [2002] All E.R. 565, [2002] 2 W.L.R. 578;Lukacs v. United Airlines Inc., et al., 2009 MBQB 29, 73 C.P.C. (6th) 385, 237 Man.

R. (2d) 75; International Air Transport Association& Ors (Transport), [2006] EUECJ C-344/04 (BAILII), [2006] E.C.R. I-403, [2006] 2 C.M.L.R. 20; Ross v. Ryanair Ltd. & Anor, [2004]EWCA Civ 1751 (BAILII), [2005] 1 W.L.R. 2447; Northwest Territories (Attorney General) v. Fédération Franco-Ténoise, 2008NWTCA 6 2008 NWTCA 06, 440 A.R. 56, [2009] 12 W.W.R. 259, 176 C.R.R. (2d) 116. referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1; Canada (Attorney General) v.Viola, (FCA), [1991] 1 F.C. 373, (1991), 123 N.R. 83 (C.A.); Lavigne v.

Canada (Office of the Commissioner of theOfficial Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, 214 D.L.R. (4th) 1, 289 N.R. 282; DesRochers v. Canada (Industry), 2009 SCC8, [2009] 1 S.C.R. 194, 302 D.L.R. (4th) 632, 384 N.R. 50; Plourde v. Service aérien FBO inc. (Skyservice), 2007 QCCA 739, leave toappeal to S.C.C. refused, [2007] 3 S.C.R. xiii; Croteau v. Air Transat AT inc., 2007 QCCA 737, [2007] R.J.Q. 1175, leave to appeal toS.C.C. refused, [2007] 3 S.C.R. viii; Walton v. MyTravel Canada Holdings Inc., 2006 SKQB 231, 26 C.P.C. (6th) 253, 280 Sask. R. 1;Tandon v. United Air Lines, 926 F.

Supp. 366 (S.D.N.Y. 1996); Abramson v. Japan Airlines, 739 F.2d 130 (3d Cir. 1984); Walker v.Eastern Air Lines Inc., 775 F. Supp. 111 (S.D.N.Y. 1991); Naval-Torres v. Northwest Airlines Inc. (1998), (ON SC),159 D.L.R. (4th) 67, 21 C.P.C. (4th) 67, 60 O.T.C. 193 (Ont. Gen. Div.); King v. American Airlines, 284 F.3d 352 (2d Cir. 2002);Connaught Laboratories Ltd. v. British Airways, , 61 O.R. (3d) 204, 217 D.L.R. (4th) 717, 13 C.C.L.T. (3d) 288 (Sup.Ct.), affd by , 77 O.R. (3d) 34, 253 D.L.R. (4th) 601, 33 C.C.L.T. (3d) 37 (C.A.); Vancouver (City) v.

Ward, 2010SCC 27, [2010] 2 S.C.R. 28, 321 D.L.R. (4th) 1, [2010] 9 W.W.R. 195; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513,273 D.L.R. (4th) 193, 353 N.R. 343; Métromédia CMR Inc. v. Tétreault (1994), 55 C.P.R. (3d) 514 (Que. Sup. Ct.); Pro Swing Inc. v.Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, 273 D.L.R. (4th) 663, 41 C.P.C. (6th) 1; Picard c. Johnson & Higgins Willis Faberltée, , [1988] R.J.Q. 235, 21 Q.A.C. 245 (C.A.). AUTHORS CITED Canada. Office of the Commissioner of Official Languages.

Audit of Service Delivery in English and French to Air Canada Passengers:Final report, September 2011, online: <http://www.ocol-clo.gc.ca/docs/e/audit_verification_092011_e.pdf>. Canada. Standing Joint Committee on Official Languages. Air Canada: Good intentions are not enough. Ottawa: The Committee, 2002. Côté, Pierre-André The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011. Emanuelli, Claude. Droit international privé québécois, 3rd ed. Montréal: Wilson & Lafleur, 2011. Sharpe, Robert J. Injunctions and Specific Performance, 2nd ed. loose-leaf, Aurora, Ont.: Canada Law Book, 1992 APPEAL from a Federal Court decision (2011 FC 876, [2013] 2 F.C.R. 83, 239 C.R.R. (2d) 301, 394 F.T.R. 160) declaring that theappellant had breached its duties under

Part IV of the Official Languages Act and ordering a number of remedies, including payment ofdamages to the respondents and general and structural orders. Appeal allowed. APPEARANCES Louise-Hélène Sénécal and David Rhéault for appellant. Michel Thibodeau and Lynda Thibodeau on their own behalf. Pascale Giguère and Kevin Shaar for intervener. SOLICITORS OF RECORD Air Canada Centre Law Branch, Dorval, for appellant. Office of the Commissioner of Official Languages, Legal Affairs Branch for intervener.

The following is the English version of the reasons for judgment rendered by Trudel J.A.: Introduction [1] In this appeal, the Court is called to review the exercise of the remedial power of the Federal Court in response to an applicationby the respondents, Michel and Lynda Thibodeau (the Thibodeaus), under subsection 77(1) [as am. by S.C. 2005, c. 41, s. 2] of theOfficial Languages Act, R.S.C., 1985 (4th Supp.), c. 31 (OLA) for violations of their language rights that occurred in the course ofinternational air flights. [2] Under this subsection, any person having filed a complaint with the Commissioner of Official Languages concerning, amongothers, a right under

Part IV [ss. 21–33] of the OLA, may apply to the Federal Court to obtain relief. The judge hearing such anapplication is not bound by the Commissioner’s investigation report related to this complaint, and must rather determine whether therehas been a breach of the OLA after weighing the evidence presented by the parties (Forum des maires de la Péninsule acadienne v.Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276 (Forum des maires), at paragraph 21) and then, eventually, grantsuch remedy as the Court considers “appropriate and just in the circumstances” (at subsection 77(4) of the OLA).

[ 3 ] In their application, the Thibodeaus alleged that the carrier Air Canada (or the appellant) had breached the linguistic duties imposed on it by

Part IV of the OLA , specifically, under subsection 23(1) , under which it must ensure that members 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 a significant demand for those services in that language. Hence, the Thibodeaus sought a declaratory judgment that Air Canada breached its linguistic duties, a letter of apology and damages, including exemplary and punitive damages. They also submitted that Air Canada’s breaches of its linguistic duties are systemic.

Consequently, they asked the Federal Court to render a so-called structural (or institutional) order to remedy this situation. [ 4 ] The facts of the case are very simple. The Thibodeaus complained to the Commissioner that on two separate round trips between Canada and the United States, Air Canada did not offer them the service in French to which they were entitled at each point of service in their itinerary. The Commissioner found that some of these complaints were justified.

The grounds for complaint accepted by the Commissioner included not only in-flight services but also ground services (the absence of services in French at the check-in counters and during announcements directed at passengers concerning changes in luggage carousels). These incidents are described more specifically in paragraphs 14 to 17, inclusive, of the reasons issued by a judge of the Federal Court (the Judge) [2011 FC 876 , [2013] 2 F.C.R. 83].

Air Canada and Jazz are the airlines involved. [ 5 ] On the basis of subsection 77(4) of the OLA , the Judge ruled as follows: JUDGMENT THE COURT ALLOWS this application: DECLARES that Air Canada breached its duties under

Part IV of the Official Languages Act .

More specifically, Air Canada breached its duties by: • failing to offer services in French on board (Jazz-operated) flight AC8627, a flight on which there is significant demand for services in French, on January 23, 2009; • failing to translate into French an announcement made in English by the pilot who was the captain of (Jazz-operated) flight AC8622 on February 1, 2009; • failing to offer service in French on board (Jazz-operated) flight AC7923, a flight on which there is significant demand for services in French, on May 12, 2009; • making a passenger announcement regarding baggage collection at the Toronto airport on May 12, 2009, in English only.

ORDERS Air Canada to: • give the applicants a letter of apology containing the text appearing in

Schedule A to this order, which is the text of the draft apology letter filed by Air Canada; • make every reasonable effort to comply with all of its duties under

Part IV of the Official Languages Act ; • introduce, within six months of this judgment, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language duties, as set out at

Part IV of the OLA and at

section 10 of the ACPPA , particularly by introducing a procedure to identify and document occasions on which Jazz does not assign flight attendants able to provide services in French on board flights on which there is significant demand for services in French; • pay the amount of $6 000 in damages to each of the applicants; • pay the applicants the total amount of $6 982.19 in costs, including the disbursements. [ 6 ] Air Canada is appealing from that judgment ( 2011 FC 876 , [2013] 2 F.C.R. 83) [cited above], submitting that it is vitiated by errors of law calling for the intervention of our Court.

During the appeal, Air Canada obtained a stay of execution of the judgment of the Federal Court (order of Chief Justice Blais, 2011 FCA 343 , 425 N.R. 297). In the appeal, the Commissioner, just as in the proceeding before the Federal Court, was recognized as intervener (order of Chief Justice Blais, 2012 FCA 14 ). [ 7 ] Air Canada submits that it should not be ordered to pay any damages whatsoever for the three incidents which occurred during international air carriage, specifically, for the absence of services in French on flights AC8627, AC8622 and AC7923, since

Article 29 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air , signed at Montréal, May 28, 1999, incorporated under Canadian law under the Carriage by Air Act , R.S.C., 1985, c. C-26,

Schedule VI (Montréal Convention) provides an exclusive remedy for such breaches. In addition to the legal principle cited, the amount at stake is $4 500 for each Thibodeau.

Air Canada also submits that the Federal Court erred in law and in fact in rendering the general and structural orders found in the judgment reproduced above. [ 8 ] That said, the appeal book shows that Air Canada agreed to submit a letter of apology to the Thibodeaus with respect to certain specific breaches, to pay them damages of $3 000 ($1 500 each) with respect to an announcement to passengers made in English only concerning baggage claim and procedures for connecting flights at the Toronto airport on May 12, 2009, as well as a total of $6 982.19 in costs including disbursements (appellant’s memorandum of fact and law, at paragraphs 3 and 7; letter of apology, appeal book,

Schedule A, at page 84). [ 9 ] Thus, the parties agree that the appeal raises the three issues below, to which I propose to respond as follows:

(

A) Does

Article 29 of the Montréal Convention exclude the action in damages brought by the Thibodeaus under

Part IV of the OLAfor incidents having occurred during international carriage? Yes. (

B) Was the Judge entitled to issue a general order against Air Canada to comply with

Part IV of the OLA dealing with theobligations of federal institutions in the area of communication with the public and provision of services? No. (

C) Was the Judge entitled to render a structural order against Air Canada? No. [10] In my discussion, I will refer to the relevant passages of the judgment appealed from and to the respective position of the partieswith regard to each of these questions.

Discussion Preliminary remarks: the legislative framework [11] The Judge meticulously presented the legislative regime which applies to the appellant’s commercial activities: the OLA, the AirCanada Public Participation Act, R.S.C., 1985 (4th Supp.), c. 35 (ACPPA) and the Official Languages (Communications with andServices to the Public) Regulations, SOR/92-48. [12] I will quote the very apt comments of the Judge found at paragraphs 7 to 12, inclusive: The OLA, which applies to federal institutions, gives concrete expression to the principle of equality of Canada’s two official languages,which is enshrined at

section 16 of the Canadian Charter of Rights and Freedoms … (the Charter), and the right of members of thepublic to communicate with any central office in the official language of their choice, set out at

section 20 of the Charter. The courts haveconsistently held that the OLA has quasi-constitutional status (Canada (Attorney General) v. Viola, (FCA), [1991] 1F.C. 373 (available on QL); R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768 (available on CanLII); Lavigne v. Canada(Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; DesRochers v. Canada (Industry), 2009 SCC 8,[2009] 1 S.C.R. 194 (DesRochers)). According to

section 2 of the OLA, the purpose of this statute is to ensure respect for English and French as official languages, theirequality of status and equal rights and privileges concerning their use in all federal institutions with respect to various aspects of federalinstitutions’ activities, including communications with, or the provision of services to, the public. The OLA concerns the federal institutions identified at

section 3 … of this statute. Air Canada was initially created as a Crown corporation and, as such, was subject to the Official Languages Act, R.S.C. 1970, c. O-2 and,then, to the OLA, which replaced it. In 1988, Air Canada was privatized, and the Air Canada Public Participation Act … provided forthe continuance of Air Canada under the

Canada Business Corporations Act. Otherwise, under

section 10 … of the ACPPA, Air Canadais still subject to the OLA. Subsections 1 and 2 of

section 10 of the ACPPA read as follows: OfficialLanguagesAct 10.

(1) The Official Languages Act applies to the Corporation. Duty resubsidiaries(2) Subject to subsection (5), if air services, including incidental services, are provided or made available by a subsidiary ofthe Corporation, the Corporation has the duty to ensure that any of the subsidiary’s customers can communicate with thesubsidiary in respect of those services, and obtain those services from the subsidiary, in either official language in any casewhere those services, if provided by the Corporation, would be required under

Part IV of the Official Languages Act to beprovided in either official language.

Part IV of the OLA applies to communications with and the provision of services to the public. This

part includes the followingprovisions: Rights relatingto language ofcommunication 21. Any member of the public in Canada has the right to communicate with and to receive available services fromfederal institutions in accordance with this Part. Wherecommunicationsand servicesmust be in bothofficiallanguages 22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtainavailable services from its head or central office in either official language, and has the same duty with respect to anyof its other offices or facilities (

a) within the National Capital Region; or (

b) in Canada or elsewhere, where there is significant demand for communications with and services from that officeor facility in that language. Travellingpublic 23.

(1) For greater certainty, every federal institution that provides services or makes them available to the travellingpublic has the duty to ensure that any member of the travelling public can communicate with and obtain those servicesin either official language from any office or facility of the institution in Canada or elsewhere where there is significantdemand for those services in that language.

Services provided pursuant to a contract

(2) Every federal institution has the duty to ensure that such services to the travelling public as may be prescribed by regulation of the Governor in Council that are provided or made available by another person or organization pursuant to a contract with the federal institution for the provision of those services at an office or facility referred to in subsection (1) are provided or made available, in both official languages, in the manner prescribed by regulation of the Governor in Council. … Where services provided on behalf of federal institutions 25.

Every federal institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those services from that person or organization in either official language in any case where those services, if provided by the institution, would be required under this Part to be provided in either official language. According to

section 22 of the OLA , federal institutions are required to communicate and provide services in both official languages where there is significant demand for those services in the minority language and where it is warranted by the nature of the office or facility.

Under the Official Languages (Communications with and Services to the Public) Regulations , SOR/92-48 (the Regulations), there is significant demand for the use of an official language in an airport where over a year, the total number of emplaned and deplaned passengers at that airport is at least one million and, for the other airports, where over a year, at least 5 percent of the demand from the public for services at that airport is in that language (subsections 7(1) and 7(3)).

With regard to services on board flights, the Regulations provide that some flights are automatically designated as routes on which there is significant demand in the minority language, whereas others are so designated in accordance with the volume of demand. In that regard, subsection 7(2) and paragraph 7(4)(

c) of the Regulations provide as follows: 7. …

(2) For the purposes of subsection 23(1) of the Act, there is significant demand for services to the travelling public from an office or facility of a federal institution in an official language where the office or facility provides those services on a route and on that route over a year at least 5 per cent of the demand from the travelling public for services is in that language. …

(4) For the purposes of subsection 23(1) of the Act, there is significant demand for services to the travelling public from an office or facility of a federal institution in both official languages where … (

c) the office or facility provides those services on board an aircraft (

i) on a route that starts, has an intermediate stop or finishes at an airport located in the National Capital Region, the CMA of Montreal or the City of Moncton or in such proximity to that Region, CMA or City that it primarily serves that Region, CMA or City, (ii) on a route that starts and finishes at airports located in the same province and that province has an English or French linguistic minority population that is equal to at least 5 per cent of the total population in the province, or (iii) on a route that starts and finishes at airports located in different provinces and each province has an English or French linguistic minority population that is equal to at least 5 per cent of the total population in the province; [Citations omitted.] [ 13 ] In addition to these legislative instruments, there is the Montréal Convention, whose relevant portions were cited by the Judge at paragraph 51 of her reasons: The following provisions of the Convention are relevant: CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR THE STATES PARTIES TO THIS CONVENTION RECOGNIZING the significant contribution of the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12 October 1929, hereinafter referred to as the “Warsaw Convention”, and other related instruments to the harmonization of private international air law; RECOGNIZING the need to modernize and consolidate the Warsaw Convention and related instruments; RECOGNIZING the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution; REAFFIRMING the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation, done at Chicago on 7 December 1944; CONVINCED that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests; …

Article 1 — Scope of Application

1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking. 2.

For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party.

Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention. …

Chapter III Liability of the Carrier and Extent of Compensation for Damage

Article 17 — Death and Injury of Passengers — Damage to Baggage 1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 2.

The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. …

Article 18 — Damage to Cargo 1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. 2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following: …

Article 19 — Delay The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. …

Article 21 — Compensation in Case of Death or Injury of Passengers 1. For damages arising under paragraph 1 of

Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. 2. The carrier shall not be liable for damages arising under paragraph 1 of

Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that: (

a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (

b) such damage was solely due to the negligence or other wrongful act or omission of a third party. …

Article 29 — Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable. [ 14 ] Air Canada readily concedes that it is subject to

Part IV of the OLA , and in no way disputes the objectives of that law or its quasi-constitutional status.

It is also agreed that the appellant’s linguistic obligations apply to “services to the travelling public as may be prescribed by regulation of the Governor in Council that are provided or made available by another person or organization pursuant to a contract” (at subsection 23(2) of the OLA), in this instance Jazz, which entered into a commercial agreement with Air Canada whereby Air Canada purchases almost all of Jazz’s fleet capacity at predetermined prices. [ 15 ] In addition, as seen in its letter of apology mentioned above, Air Canada does not deny that it failed to observe its linguistic

obligations with regard to the Thibodeaus on three occasions by failing to offer services in French on international flights during whichthe use of the French language was required (appellant’s memorandum, at paragraph 3). (

A) The first issue: Does

Article 29 of the Montréal Convention exclude the action in damages brought by the Thibodeaus under PartIV of the OLA for incidents having occurred during international carriage? [16] In this case, the first issue is whether, in view of

Article 29 of the Montréal Convention, the Judge erred in law in ordering AirCanada to pay damages in the amount of $4 500 to each of the respondents for the three breaches of their linguistic rights. Theinterpretation of

Article 29 of the Montréal Convention and its interaction with the remedial provisions of the OLA in the context ofinternational air carriage are questions of law subject to a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.235, at paragraph 8. [17] After expressing some hesitation as to the scope of

Article 29 of the Montréal Convention, the Judge undertook to resolve theconflict of laws which, in her opinion, was raised by the application initiated by the Thibodeaus.

At the end of the day, the Judge ruled infavour of the application of the OLA, resulting in the damages awarded to the Thibodeaus for the complaints concerning incidentsduring international carriage. [18] Indeed, the Judge said that, at first glance, she was “tempted to accept the Commissioner’s argument”, also that of theThibodeaus, that the Montréal Convention in no way limits the remedial power of the Federal Court under the OLA because (reasons, atparagraph 67): … the Montréal Convention cannot apply in this case because it concerns situations that are totally foreign to the ambit of the OLA …. [19] It is not disputed that the facts giving rise to the Thibodeaus’ complaints do not fall under Articles 17 to 19 of the MontréalConvention (death and injury of passengers; damage to baggage or cargo; delay in air carriage).

In addition, I note that the Thibodeausdo not argue that the incidents which gave rise to their complaints constituted “accidents” within the meaning of

Article 17 of theMontréal Convention. Nor has it been disputed that Air Canada’s linguistic duties are not connected to international air carriage, thatthey do not stem from the Montréal Convention and further do not concern the other signatory states. [20] That being said, the Judge did not accept the argument of the Commissioner and of the Thibodeaus.

Rather, she concluded asfollows (reasons, at paragraph 77): … that in interpreting the Montréal Convention as allowing compensation on the basis of a cause of action which is not contemplated bythe Convention, I would depart from the Canadian and international case law. [21] Although with “reservations”, the Judge thus accepted the doctrine of this case law (reasons, at paragraph 75): The liberal

interpretation given to the Warsaw and Montréal Conventions leads me to acknowledge the very broad ambit of the MontréalConvention, which comes into play once an incident or a situation occurs during international carriage and sets out, in a limited way, thecauses of action which may give rise to compensation and the compensable types of damage. [22] I am in agreement with this

interpretation of the Montréal Convention. My disagreement with the Federal Court’s position stemsfrom the fact that the Judge went on to conclude that there was a conflict of laws and that she was unable to harmonize the twolegislative instruments, thus rejecting Air Canada’s argument to the contrary. The Judge wrote (reasons, at paragraph 77): … it does not seem possible to me to reconcile the two instruments.

If I were to conclude that subsection 77(4) of the OLA excludes theaward of damages when the violation occurs during an international flight, this would weaken the OLA considerably. [23] In order to resolve this apparent conflict of laws, the Judge undertook to determine which of the two instruments must prevailover the other. Citing subsection 82(1) of the OLA, which provides that, in the event of inconsistency with any Act of Parliament orregulation thereunder, the provisions of

Part IV of the OLA “prevail to the extent of the inconsistency”, the Judge ruled in favour of theprimacy of the OLA on the basis of, on the one hand, the implicit precedence of “the remedy provisions by means of which breaches ofthe duties set out in

Part IV of this statute may be enforced” (reasons, at paragraph 82) and, on the other hand, of the quasi-constitutionalnature of the OLA (Viola [Canada (Attorney General) v. Viola, (FCA), [1991] 1 F.C. 373 (C.A.)], at page 386;Lavigne [Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773], at paragraph 21;DesRochers [DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194], at paragraph 2). [24] With respect, my examination of the record and of the applicable law leads me to conclude otherwise.

In my view, the legislativeinstruments, properly construed, can be harmonized. They can both be applied concurrently without producing an unreasonable result orone which fails to respect the objectives of each. (A.1)

Article 29 of the Montréal Convention [25] Although I have already stated my agreement with the Federal Court’s conclusion as to the correct

interpretation of

Article 29 ofthe Montréal Convention, I feel that it is useful, at this stage, to present a brief discussion of the international and Canadian case law thatthe Judge cited in her reasons, and which the parties have argued before our Court. The parties have taken diametrically opposedpositions, often interpreting the same case differently.

Air Canada’s argument, which was accepted by the Judge, correctly in my view,save for her reservation, is that the Montréal Convention constitutes the sole remedy for a passenger against a carrier for any loss, bodilyinjury or property damage incurred during or arising out of international air carriage. In opposition to this, the argument advanced by theThibodeaus and the Commissioner is that the Montréal Convention has no force except in cases where it provides for a remedy.

In theirsubmissions, if the Montréal Convention does not provide for a remedy for a loss suffered, the applicant is free to seek damages underdomestic law, in this case, under the OLA. [26] In Sidhu v. British Airways, [1997] 1 All E.R. 193 (Sidhu), the leading case in this field, the House of Lords addressed the

purpose of

Article 24 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed atWarsaw, October 12, 1929, reproduced in the Carriage by Air Act [R.S.C., 1985, c. C-26],

Schedule I (Warsaw Convention), theprevious version of

Article 29 of the Montréal Convention. The following comments are found at page 207 of that decision: The intention seems to be to provide a secure regime, within which the restriction on the carrier’s freedom of contract is to operate.Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by theconvention are to apply.

To permit exceptions, whereby a passenger could sue outwith the convention for losses sustained in the courseof international carriage by air, would distort the whole system, even in cases for which the convention did not create any liability on thepart of the carrier. Thus, the purpose is to ensure that, in all questions relating to the carrier’s liability, it is the provisions of theconvention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise,which may be available within the particular country where he chooses to raise his action.

The carrier does not need to make provisionfor the risk of being subjected to such remedies, because the whole matter is regulated by the convention. [Emphasis added.] [27] Then, in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (2d Cir. 1999) (Tseng), the Supreme Court of the UnitedStates followed Sidhu, writing “recovery for a personal injury suffered ‘on board [an] aircraft or in the course of any of the operations ofembarking or disembarking,’ … if not allowed under the Convention, is not available at all” (at page 161). Mr.

Tseng had brought anaction against the airline following an invasive security search conducted before boarding, alleging assault (without bodily injury), andfalse imprisonment. [28] KLM Royal Dutch Airlines v. Morris, [2001] EWCA Civ 790 (BAILII), [2001] 3 All E.R. 126 and King v. Bristow HelicoptersLtd. (Scotland); In Re M, [2002] UKHL 7, [2002] 2 A.C. 628, decide that the Warsaw Convention precludes the award of damages formental injury not connected to bodily injury, because that cause of action is not provided for in Articles 17 to 19 of the MontréalConvention.

Thus, damages for stress or anxiety could not be awarded, in view of the exclusive nature of the Convention regime. [29] By and large, the Canadian case law is to the same effect (see Plourde c. Service aérien FBO inc. (Skyservice), 2007 QCCA 739(application for leave to appeal to the Supreme Court dismissed, [2007] 3 S.C.R. xiii); Croteau v. Air Transat AT inc., 2007 QCCA 737(application for leave to appeal to the Supreme Court dismissed, [2007] 3 S.C.R. viii); Walton v. MyTravel Canada Holdings Inc., 2006SKQB 231, 26 C.P.C. (6th) 253; for instance, in Lukacs v.

United Airlines Inc., et al., 2009 MBQB 29, 73 C.P.C. (6th) 385, the followingcomment is found at paragraph 66: “The Montreal Convention does not permit claims against a carrier based on domestic law”). [30] Finally, Stott v. Thomas Cook Tour Operators Ltd. & Ors, [2012] EWCA Civ 66 (BAILII) (Stott) must be considered. As thatcase was decided after the judgment appealed from herein was rendered, the Federal Court did not have the opportunity to benefit fromits reasoning. In Stott, the Court of Appeal of England and Wales (Civil Division) addressed the cases of Messrs.

Stott and Hook, twotravellers suing their respective air carrier for damages for a lack of accommodation meeting their needs as disabled persons duringinternational carriage. Messrs.

Stott and Hook based their action on Regulation (EC) No 1107/2006 of the European Parliament and ofthe Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air, [2005]OJ L 204/1 (EC Regulation) and on the British regulation adopted under the latter (Civil Aviation (Access to Air Travel for DisabledPersons and Persons with Reduced Mobility) Regulations 2007, S.I. 2007/1895 (UK Regulation)).

While the EC Regulation specifiedthat member states must provide for effective rules and penalties to discourage any infringements of the latter (Article 16), the UnitedKingdom regulation added that the remedy granted for a violation of the EC Regulation could include financial compensation for theharm suffered (article 9 of the UK Regulation). The Court of Appeal accepted the argument that it was to harmonize the aboveregulations with the Montréal Convention; yet, at the end of the day, the Court of Appeal dismissed the actions brought by Messrs.

Stottand Hook (Stott, at paragraph 53): … once one is within the timeline and space governed by the Convention, it is the governing instrument in international, European anddomestic law. [31] Thus, I cannot agree with the argument of the Thibodeaus and of the Commissioner, who submit that Sidhu supports theircontention (intervener’s memorandum of fact and law, at paragraphs 19–25). Their position is accepted in a small number of isolatedcases that are not really relevant in the case at bar.

For example, one case held that a regulatory provision aimed at compensation andassistance to passengers in the event of major flight delay was not incompatible with the Montréal Convention because the provision“simply operates at an earlier stage than the system which results from the Montreal Convention” (International Air TransportAssociation & Ors (Transport), [2006] EUECJ C-344/04 (BAILII), [2006] E.C.R.

I-403, [2006] 2 C.M.L.R. 20 [at paragraph 46]);another case held that the alleged incidents occurred outside of the period covered by Articles 17 to 19 of the Montréal Convention,before or after the carriage period as defined in the Warsaw Convention or the Montréal Convention (Ross v. Ryanair Ltd. & Anor,[2004] EWCA Civ 1751 (BAILII), [2005] 1 W.L.R. 2447). Finally, a few other cases included more specific discussions of the conceptof “accident” within the meaning of the Warsaw Convention (Tandon v. United Air Lines, 926 F. Supp. 366 (S.D.N.Y. 1996); Abramsonv.

Japan Airlines, 739 F.2d 130 (3d Cir. 1984); Walker v. Eastern Air Lines Inc., 775 F. Supp. 111 (S.D.N.Y. 1991), see also Naval-Torres v. Northwest Airlines Inc. (1998), (ON SC), 159 D.L.R. (4th) 67 (Ont. Gen. Div.)). [32] I emphasize once again, the three incidents involved in this appeal occurred in the course of international carriage, which isindubitably governed by the Montréal Convention. The Thibodeaus are not arguing that Air Canada’s breaches of their linguistic rightsare “accidents” within the meaning of the Convention.

In addition, Air Canada does not contest the award of damages for the incidentthat occurred at the baggage counter of the Toronto airport, for which the Judge awarded $1 500 to each of the Thibodeaus. Air Canadaagrees that damages may be awarded in relation to situations having occurred outside of the periods of international carriage covered bythe Convention. [33] In conclusion, in light of the Canadian and international case law cited above, as relevant to

Article 24 of the Warsaw Conventionas it is to

Article 29 of the Montréal Convention, I find that the latter precludes the award of damages for causes of action not specificallyprovided for therein, even when the cause of action does not arise out of a risk inherent in air carriage (for example, an invasive bodysearch before embarking (Tseng) or discrimination based on race (King v. American Airlines, 284 F.3d 352 (2d Cir. 2002)) or on physicaldisability (Stott)). Thus, although the Montréal Convention, like that of Warsaw, does not address all aspects of international air carriage,it constitutes a complete code as concerns the aspects of international air carriage that it expressly regulates, such as the air carrier’s

liability for damages, regardless of the source of this liability. The purpose of the Montréal Convention, following the example of the one preceding it (the Warsaw Convention), is to provide for consistency of certain rules regarding the liability incurred during international air carriage. The doctrine propounded by Sidhu , Tseng and Stott promotes this goal. (A.2) Conflict of laws [ 34 ] As stated previously, the Judge concluded that there was a conflict of laws in this case. Considering that

Part IV of the OLA governing the appellant’s linguistic obligations has precedence over any incompatible provision of another law, the remedial provisions of the OLA were held to prevail over those of the Montréal Convention. Thus, the Thibodeaus were entitled to the damages sought for the three incidents occurring during the period of application of the Montréal Convention.

According to the Federal Court, if it were impossible to award damages for violations of linguistic rights committed during international carriage, this “would weaken the OLA considerably” (reasons, at paragraph 77). [ 35 ] The appellant submits that the Federal Court made an error of law when it concluded that there was a conflict between the OLA and the Montréal Convention. The Judge should have first attempted to reconcile the texts. Had she done so, she would have accepted Air Canada’s argument (appellant’s memorandum of fact and law, at paragraph 23 et seq .).

As for the Commissioner, he is rather of the view that there is no conflict of laws, since the Montréal Convention does not govern language rights. Thus, there is no need to harmonize or reconcile instruments addressing completely separate subject-matters, especially when this results in a failure to respect the intent of Parliament and a restriction of the scope of a quasi-constitutional statute such as the OLA (Commissioner’s memorandum of fact and law, at paragraph 12 et seq. ). [ 36 ] The Commissioner’s position is based on an examination of the legislative instruments in question that ignores the context.

There is no question that a side by side comparison of the OLA and of the Montréal Convention leads to the conclusion he draws. However, there is a conflict of laws [ translation ] “when a given situation is connected to two or more legal regimes and it must be determined which system governs the issue or issues it poses” (Claude Emanuelli, Droit international privé québécois , 3rd ed. Montréal: Wilson & Lafleur, 2011, at paragraph 378).

In this case, the two legal regimes in question offer differing responses to the question at the centre of the dispute, i.e. are the Thibodeaus entitled to damages for the violation of their language rights? Under the Montréal Convention, the answer is negative if the violation occurred during international carriage.

Under the OLA, the answer may be affirmative, inasmuch as the judge hearing an application under subsection 77(1) of the OLA rules that damages are a just and appropriate remedy. [ 37 ] Air Canada correctly submits that, before concluding that legal provisions are in conflict, there should be an attempt to harmonize them, in view of the general presumption that the law is coherent (Pierre-André Côté, The

Interpretation of Legislation in Canada , 4th ed. (Toronto: Carswell, 2011) (Côté, The

Interpretation of Legislation in Canada 2011), at pages 325 and 326): … the law is deemed to be a reflection of coherent and logical thought.

Interpretations consistent with the postulate of legislative rationality are therefore favoured over those that are incoherent, inconsistent, illogical or paradoxical. … … the statute is to be read as a whole, and each of its components should fit logically into its scheme. This coherence should extend to rules contained in other legislation…. Accompanying this “horizontal” consistency, a “vertical” consistency is also presumed. Enactments are deemed to fit into a hierarchy of legal norms…. [Footnote omitted.] [ 38 ] This was also the approach proposed in Stott . The appellants Stott and Hook argued that a liberal

interpretation of the Montréal Convention, or the majority

interpretation, had the effect of weakening a guaranteed fundamental right protecting them against discrimination based on disability, an argument similar to the one raised by the Thibodeaus concerning the protection of their language rights (memorandum of fact and law of the Thibodeaus, at paragraphs 90–102). In Stott , the Court of Appeal (civil chamber) of the United Kingdom wrote (at paragraph 50): It is therefore incumbent upon us to construe EU and domestic legislation so as to avoid a conflict with the Montreal Convention.

To the extent that the EC Disability Regulation permitted (but did not require) domestic compensatory remedies, and to the extent that Regulation 9 of the UK Disability Regulations provides one, it is axiomatic that they should be construed, if they can be, in a manner consistent with the Montreal Convention. This militates strongly against a conclusion that, in order to be “effective, proportionate and dissuasive” the remedial structure must embrace something which would bring it into conflict with the Montreal Convention.

Such a conclusion would be wrong. [ 39 ] At paragraph 51 of its decision, the Court of Appeal added that the application of the Charter of Fundamental Rights of the European Union [[2000] OJ C 364/1] would in no way alter its conclusion. [ 40 ] Under Stott , the proper course is to reconcile subsection 77(4) of the OLA and

Article 29 of the Montréal Convention, to the greatest possible extent (Côté, The

Interpretation of Legislation in Canada 2011, at page 376): It has long been recognized that statutes are not in conflict simply because they overlap, are active in the same field or deal with the same subject matter. They may in fact be entirely reconcilable. [ 41 ] Although the Thibodeaus did not specifically argue the issue of conflict of laws, they placed great emphasis on Parliament’s intent to subject Air Canada to the same duties under the OLA as other federal institutions, duties which entail the award of damages in the event of a violation. Hence their argument for the precedence of the OLA.

The Thibodeaus submit that Parliament’s intent is revealed in the Government Response to the Seventh Report of the Standing Joint Committee on Official Languages on the provision of bilingual services at Air Canada [ Air Canada: Good intentions are not enough ]. The Committee had recommended that the government enact a system of remedies and penalties in the event of non-compliance with the OLA.

The government responded that the OLA granted courts [ translation ] “the power to award damages in appropriate situations ” (emphasis added) (Government Response to the Seventh Report of the Standing Joint Committee on Official Languages, appeal book, Vol. III, at page 578).

[42] The use of the words “appropriate situations” seems to me to indicate that the award of damages in the event of breach of theOLA does not always constitute the most suitable remedy. [43] In my view,

Article 29 of the Montréal Convention represents one of the circumstances a trial judge must take into account whenfashioning an “appropriate and just” remedy under subsection 77(4) of the OLA; he is not supposed to view the former as anencroachment on the large remedial power granted to the courts by the latter. [44] There is no implicit conflict of laws here. The cumulative application of the Montréal Convention and of the OLA to thecircumstances of the Thibodeaus does not produce an unreasonable or absurd result (Pierre-André Côté, The

Interpretation of Legislationin Canada, 4th ed. (Toronto: Carswell, 2011), at pages 378–379). Subsection 77(4) is flexible enough to allow an

interpretationreconciling its objectives with those of

Article 29 of the Montréal Convention. Such reconciliation does not in any way diminish theforce of

section 82 of the OLA. This approach does not deprive the Thibodeaus of all of their rights and remedies under the OLA, exceptthat they are not entitled to compensatory or non-compensatory damages for incidents occurring during international carriage, where theMontréal Convention has full force. In addition, the appellant is at all times subject to

Part IV of the OLA. [45] It must be kept in mind that, according to the

preamble to the Montréal Convention, the member states recognized theimportance of ensuring the protection of consumers’ interests in international carriage by air and the need for fair relief based on theprinciple of compensation. It is important that these provisions be construed and interpreted in a uniform and consistent manner by thesignatory states who have endorsed collective measures harmonizing certain rules governing international air carriage (ConnaughtLaboratories Ltd. v. British Airways, , 61 O.R. (3d) 204 (Sup. Ct.), affirmed on appeal by , 77O.R. (3d) 34 (C.A.)). Even the slightest “bending” of

Article 29 of the Montréal Convention will impair the objectives of theConvention. [46] It must also be recalled that the award of damages is not the sole possible remedy where there is a violation of a right (Vancouver(City) v.

Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paragraph 21), even if the right is constitutional or quasi-constitutional in nature.Since the parties did not present arguments as to other possible remedies in the case, I will refrain from discussing them, except to statethat, at the hearing, the appellant’s counsel acknowledged that Air Canada’s arguments would have been different if the Federal Courthad awarded the Thibodeaus a lump sum as damages for all of the incidents.

There has also been no definitive response as to whether theremedy could have taken the form of a gift to an organization defending minority language rights, a type of relief often awarded byconsent or in a criminal context.

This Court may, someday, have the opportunity to address these issues. [47] At the hearing of this appeal, the Thibodeaus firmly submitted that damages are the sole effective deterrent for the appellant’sviolation of language rights, in the context of international carriage; otherwise, the appellant will feel free to disregard the rights ofFrancophones, since it will merely be exposed to the obligation of writing a letter of apology to the affected passengers a few monthslater.

This is a very legitimate concern, but the judicial remedies and subsection 77(4) of the OLA are not the only avenue accepted byParliament to bring to order any offender who does not take seriously the rights and obligations enshrined by this law. [48] Indeed,

section 58 of the OLA grants the Commissioner the power to investigate complaints: Investigation ofcomplaints 58. … arising from any act or omission to the effect that, in any particular instance or case, (

a) the status of an official language was not or is not being recognized, (

b) any provision of any Act of Parliament or regulation relating to the status or use of the official languages wasnot or is not being complied with, or (

c) the spirit and intent of this Act was not or is not being complied with in the administration of the affairs of any federal institution. [49] In this case, some of the Thibodeaus’ complaints were immediately excluded by the Commissioner (affidavit of Mr. Thibodeau,exhibits 7, 8 and 9, appeal book, Vol. II, at pages 282–288), while others were found to be justified, including those regarding the threeincidents which concern us most, and the one for which Air Canada agreed to pay damages (affidavit of Mr. Thibodeau, exhibits 10 and11, appeal book, Vol. II, at pages 290–294).

The Commissioner’s investigation reports show that the files pertaining to the four justifiedcomplaints were closed following the adoption, by Air Canada, of remedial measures in response to his intervention (affidavit ofMr. Thibodeau, exhibits 10 and 11, appeal book, Vol. II). Thus, the Commissioner stated that he was confident that the training AirCanada offered to its employees on the active offer of bilingual service would help unilingual employees to better serve the public in bothofficial languages (affidavit of Mr. Thibodeau, exhibits 10 and 11, appeal book, Vol.

II, at page 290), and also noted that the entire staffof the Air Canada baggage counter at the Ottawa airport was bilingual, with the exception of two employees (affidavit of Mr. Thibodeau,exhibits 10 and 11, appeal book, Vol. II, at page 293). [50] In addition, in parallel with the legal action brought by the Thibodeaus, the Commissioner in 2010 initiated an audit of AirCanada. In September 2011, following the judgment appealed from, this audit resulted in a report entitled Audit of Service Delivery inEnglish and French to Air Canada Passengers: Final report.

Counsel of Air Canada discussed this report during the hearing of thisappeal. Appendix B of this report lists 12 recommendations to enable Air Canada to improve its delivery of bilingual services. It shouldbe noted that in Appendix C of the report, the Commissioner compares his recommendations to the action plan provided by Air Canada.He declares that he is satisfied with the appellant’s follow-up to the report, except as to the 11th recommendation, which has no impacton this dispute. [51] In addition, under

section 63 of the OLA, after carrying out an investigation, the Commissioner issues a report with reasons to theTreasury Board if he believes that such follow-up is necessary, that other acts or regulations should be reconsidered, or that any otheraction should be taken. Similarly, he can also send his report and the list of his recommendations to the Governor in Council (subsection65(1) of the OLA). The Governor in Council can then take the necessary actions in relation to the report and the recommendations it

contains (subsection 65(2) of the OLA). Finally, subsection 65(3) provides that the Commissioner may submit his investigation report toParliament when appropriate action has not been taken thereon. [52] It goes without saying, then, that the Commissioner can use the process set out in sections 63 and 65 of the OLA in the event thatthe appellant does not implement his recommendations. The Commissioner may also, depending on the case, apply for the

section 77 [asam. by S.C. 2005, c. 41, s. 2] remedy (see

section 78 of the OLA). [53] In conclusion, on this issue, I am of the view that the judgment under appeal is vitiated by an error of law. The Federal Courtcould not award damages for the three incidents that occurred during international carriage. (

B) The second issue: Was the Judge entitled to issue a general order against Air Canada to comply with

Part IV of the OLA dealingwith the obligations of federal institutions in the area of communication with the public and provision of services? [54] In an appeal with respect to remedies, our Court will not intervene except in the case of error of law (Doucet-Boudreau v. NovaScotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 (Doucet-Boudreau)). I am of the opinion that the Federal Court’sjudgment on this issue is vitiated by an error of law.

The Federal Court, referring to subsection 10(2) of the OLA (above, at paragraph 12of these reasons), which provides that the appellant “has the duty to ensure” (in French: “est tenue de veiller”) that clients cancommunicate with it in either official language, concluded that this obligation requires “Air Canada to make every reasonable effort tofulfill its duties” (reasons, at paragraph 144). This led to the general order requiring Air Canada to “make every reasonable effort tocomply with all of its duties under

Part IV of the OLA” [reasons, at paragraph 154]. [55] The law in itself constitutes an injunction directed at those on whom duties are imposed. While it is true that the appellant cannothide behind the general principle of exhaustion of remedies provided for by the OLA “to buy the right to break the law repeatedly withno further consequences” (Pharmascience Inc. v.

Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at paragraph 55), it remains that a generalorder to comply with the law, in whole or in part, should be granted only in exceptional circumstances, for example, in the event that aparty announces that it intends to deliberately break the law or breaks it with impunity without regard for its duties and the rights ofothers (Métromédia CMR Inc. v. Tétreault (1994), 55 C.P.R. (3d) 514 (Que. Sup. Ct.), at pages 23–24). [56] In this case, the order, as drafted, is not precise enough.

Under it, Air Canada may be held in contempt of court, in addition tobeing exposed to the remedies provided for under the OLA (Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, atparagraph 24): Despite their flexibility and specificity, Canadian relief orders are fashioned following general guidelines. The terms of the order must beclear and specific. The party needs to know exactly what has to be done to comply with the order. Also, the courts do not usually watchover or supervise performance.

While the specificity requirement is linked to the claimant’s ability to follow up non-performance withcontempt of court proceedings, supervision by the courts often means relitigation and the expenditure of judicial resources. [57] In my view, the orders issued in Doucet-Boudreau and Quigley v. Canada (House of Commons), 2002 FCT 645, [2003] 1 F.C.132 (Quigley), to which the Commissioner refers to support the wording of the order in this case, are more precise and adhere moreclosely to the principle of specificity discussed hereinabove. Thus, in Doucet-Boudreau, at paragraph 7, the order read as follows: 3.

In Île Madame-Arichat (Petit-de-Grat), the Respondent CSAP shall use its best efforts to provide a homogeneous French program forgrades 9 through 12 by September 2000 and the Respondent Department of Education shall use its best efforts (

a) to provide ahomogeneous French facility (on an interim basis) for grades 9 through 12 by September 2000 and (

b) to provide a permanenthomogeneous French facility by January 2001. 4. In Argyle, the Respondent CSAP shall use its best efforts to provide a homogeneous French program for grades Primary through 12by September 2000 and the Respondent Department of Education shall provide a homogeneous French facility for grades Primarythrough 12 by September 2001. 5.

In Clare, the Respondent CSAP shall provide a homogeneous French program for grades Primary through 12 by September 2000 andthe Respondent Department of Education shall take immediate steps to provide homogeneous French facilities for grades Primarythrough 12 by September 2001. [58] In Quigley, at paragraph 60, the formal judgment read as follows: IT IS ORDERED that: 1. A declaration will issue that the current method of the respondents, Canada (House of Commons) and Canada (Board of InternalEconomy) for providing television broadcasts of parliamentary proceedings contravenes

section 25 of the Act. 2. The above-named respondents shall, within one year of the date of this decision, take the necessary steps to bring its practices intocompliance with

section 25 of the Act. [59] In both cases, the respondents were able to know exactly what was expected of them, while having a certain amount of latitude inthe choice of the method used to achieve the result ordered. However, this case is fundamentally different, in that

Part IV of the OLAencompasses all communications with the public by Air Canada and its subcontractors, whether on board airplanes, in airports or callcentres, both in Canada and abroad. These are continuous obligations, which Air Canada meets essentially through its bilingual staffwhich is responsible for interacting with the public at about 161 500 000 points of contact per year (affidavit of Chantal Dugas, GeneralManager, Linguistic Affairs at Air Canada, appeal book, Vol. V, at page 917, paragraph 72). [60] The order, as drafted, would have to be interpreted by the court hearing contempt of court proceedings.

In such a case, the orderwould not be able to remedy the harm (Picard c. Johnson & Higgins Willis Faber ltée, , [1988] R.J.Q. 235 (C.A.), atpage 239; Robert J. Sharpe, Injunctions and Specific Performance, 2nd ed. loose-leaf, (Aurora, Ont.: Canada Law Book, 1992), at

paragraph 1.410). The court would have to address the meaning of the words “reasonable efforts” both qualitatively and quantitatively. Even when read in the context of the institutional order accompanying it, whose

interpretation presents challenges which I will discuss below, the general order is still vague and lacking in specificity. (

C) The third issue: Was the Judge entitled to issue a structural order against Air Canada? [ 61 ] The Federal Court issued a structural order, having concluded that there was a systemic problem at Air Canada. To reach this conclusion, it used, in particular, the content of previous annual reports of the Commissioner, and his investigation reports concerning similar complaints filed by third parties. Air Canada argues that the Federal Court could not admit this evidence on the basis of

section 79 of the OLA . This

section reads as follows: Evidence relating to similar complaint 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. [ 62 ] Air Canada contends that the legislative history of this section, in particular, the parliamentary debates, shows that

section 79 of the OLA [ translation ] “is solely intended to permit the Commissioner himself to group various complaints into a single procedure before the Federal Court” (appellant’s memorandum of fact and law, at paragraph 87). According to the appellant, the Judge could not allow the Thibodeaus, as private parties, to submit this evidence and thus to argue on behalf of others, without establishing the merits of the complaints made by third parties.

The appellant adds that if this practice were permitted, a federal institution would risk being sanctioned several times for the same violation, since complainants could, one by one, simply repeat all of the complaints previously filed against the targeted institution. In the same breath, Air Canada argues that the Thibodeaus do not have standing to act on behalf of the public interest and seek an institutional order. At any rate, Air Canada adds, an institutional order cannot be rendered against a private party.

This is an extraordinary public law remedy intended to protect the constitutional rights of citizens against the Executive Branch when the latter refuses, or is unable to take measures to ensure that these rights are respected (appellant’s memorandum of fact and law, at paragraph 95). [ 63 ] It will not be necessary to discuss these preliminary objections. Assuming, for the purposes of this appeal, that the Judge could have, under

section 79 , admitted evidence of complaints by third parties, and that the Thibodeaus have public interest standing to seek the remedies already discussed, I am of the view that the structural order issued by the Federal Court is not justified in the light of the evidence on the record.

It cannot stand because, among other things, it is imprecise and disproportionate with regard to the prejudice suffered by the Thibodeaus. [ 64 ] The portion of the institutional order issued by the Judge orders Air Canada to: introduce, within six months of this judgment, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language duties, as set out at

Part IV of the OLA and at

section 10 of the ACPPA , particularly by introducing a procedure to identify and document occasions on which Jazz does not assign flight attendants able to provide services in French on board flights on which there is significant demand for services in French; [ 65 ] The Supreme Court, in Doucet-Boudreau (at paragraphs 52–58 ), sets out the principles that must guide the court in determining whether a structural order is a just and appropriate remedy.

These principles, applied by our Court in Forum des maires , at paragraph 57, are as follows: (i) … the judge must “exercise a discretion based on his or her careful perception of the nature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles”. The solution that is adopted “must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied”.

The remedy must be effective, realistic, and adapted to the facts of the case. (ii) It must be respectful of “the relationships with and separation of functions among the legislature, the executive and the judiciary”, (iii) [It must draw on] and the role of the courts, which is one of “adjudicating disputes and granting remedies that address the matter of those disputes”, and not leap into “the kinds of decisions and functions for which [the] design and [their] expertise are manifestly unsuited”. (iv) The remedy must be “fair to the party against whom the order is made” and not “impose substantial hardships that are unrelated to securing the right”. [References to paragraphs of Doucet-Boudreau omitted.] [ 66 ] The institutional order rendered against the appellant does not satisfy these criteria.

I conclude that this part of the judgment contains an error calling for the intervention of our Court. [ 67 ] First, I note that the evidence is vague as to the systemic nature of Air Canada’s breaches of its linguistic obligations.

In that respect, I believe it is relevant to reproduce here paragraph 153 of the Judge’s reasons: I therefore find that, even though Air Canada is making efforts to comply with its linguistic duties, problems persist, and both Air Canada and Jazz have not completely developed a reflex to proactively implement all the tools and procedures required to comply with their duties, to measure their actual performance in the provision of services in French and to set improvement objectives.

This finding, combined with Jazz’s admission that it still has difficulty complying with all its duties, leads me to conclude that there is a systemic problem at Air Canada. However, my conclusion should not be understood as being a finding that there is a general problem within the organization. I do mean a “systemic problem”, as opposed to one-off or isolated problems that are out of Air Canada’s control. I recognize that it is impossible to be perfect, and despite all efforts, there are always likely to be flaws.

It is my view, however, that the breaches in question cannot be characterized as being isolated or out of Air Canada’s control. In fact, Air Canada itself does not seem to know how often it fails in its duties. As is noted in Fédération Franco-Ténoise , at paragraph 862 , “[f]urther, it is difficult for the [Government of the Northwest Territories] to maintain that it ‘is doing its best’, in the absence of a regular, well established process for

auditing the available services.” I find that at Air Canada, and particularly at Jazz, there are procedures that are likely to create situationsin which Air Canada is unable

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