2011 FC 876, 2011 FC 876

[2013] 2 F.C.R. 83 T-450-10 T-451-10 2011 FC 876 Michel Thibodeau and Lynda Thibodeau ( Applicants ) v. Air Canada ( Respondent ) and Commissioner of Official Languages ( Intervener ) Indexed as: Thibodeau v. Air Canada Federal Court, Bédard J.—Ottawa, March 28, 29 and July 13, 2011. * Editor’s Note: This decision has been reversed in part on appeal (A-358-11, 2012 FCA 246 ). The reasons for judgment, handed down September 25, 2012, are published at [2013] 2 F.C.R. 155. Official Languages — Application made under Official Languages Act (OLA), s. 77(1) wherein applicants seeking damages in relief against respondent on basis respondent failing to fulfill duties or obligations under OLA,

Part IV to ensure applicants receiving services in French — Also seeking institutional orders against respondent, exemplary, punitive damages — Applicants filing eight complaints with Commissioner of Official Languages regarding services received from respondent on two trips applicants making between Canada, United States — Commissioner rejecting complaint regarding two incidents, confirming merit of others — Whether respondent breaching linguistic duties towards applicants; whether just, appropriate to award applicants damages, including exemplary, punitive damages, to make institutional orders against respondent — Respondent acknowledging having breached duty to provide services in French during four of five incidents reported — Applicants awarded damages given that language rights clearly very important thereto, violation thereof causing applicants moral prejudice, pain, suffering, loss of enjoyment of vacation; award also having deterrent effect — Duties imposed by Parliament, in particular under Air Canada Public Participation Act , OLA requiring that respondent make every reasonable effort to fulfill duties — While respondent making efforts to comply with linguistic duties, problems persisting — Leading to conclusion that systemic problem at respondent existing; therefore fair, appropriate to require that respondent make every reasonable effort to fulfill all its duties under OLA,

Part IV in particular — Attitude of respondent’s employees, respondent itself in no way calling for award of exemplary damages — Evidence showing that respondent’s breaches not warranting imposition of “penalty”— Application allowed. Conflict of Laws — A pplicants seeking damages in relief against respondent on basis respondent failing to fulfill duties or obligations under Official Languages Act (OLA),

Part IV — Respondent arguing that Court’s remedial powers limited by Convention for the Unification of Certain Rules for International Carriage by Air (Montréal Convention) — Montréal Convention constituting international agreement providing for uniform liability scheme for international air carriers, users thereof — Setting out limited set of circumstances potentially giving rise to compensation, not imposing linguistic duties — Under OLA, s. 77(4), damages undeniably among remedies available to Court — Conflict thus existing between Court’s remedial power under OLA, s. 77(4), Montréal Convention; seemingly not possible to reconcile two instruments — OLA, s. 77(4) prevailing over Montréal Convention — While giving precedence to OLA resulting in displacement of Montréal Convention, not compromising Canada’s international obligations or undermining integrity thereof.

This was an application made under subsection 77(1) of the Official Languages Act (OLA) seeking damages in relief against the respondent on the basis that it failed to fulfill its duties or obligations under

Part IV of the OLA to ensure that the applicants receive services in French. The applicants also sought institutional orders thereagainst, claiming that the respondent’s breaches of its official languages duties are systemic, and an order for it to pay exemplary and punitive damages. The application was filed after each applicant had filed eight complaints with the Commissioner of Official Languages regarding the services they received from the respondent on two trips they made between January and May 2009 between Canada and the United States.

The applicants claimed that on various occasions during those two trips, they did not receive the services in French to which they were entitled. In this case, the Commissioner did not accept the complaint pertaining to the absence of services in French in two of the incidents reported by the applicants but confirmed that the other complaints had merit.

The issues were whether the respondent breached its linguistic duties towards the applicants, what were the Court’s remedial powers, and whether it was just and appropriate to award the applicants damages, to make institutional orders against the respondent and to award the applicants exemplary and punitive damages. Held , the application should be allowed. The respondent acknowledged having breached its duty to provide services in French during four of the five incidents that were reported: three times during a flight and once when making a baggage collection announcement at the Toronto airport.

As for the Court’s remedial powers, the respondents argued that the Court’s power to award damages was limited by the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Montréal Convention), which they claimed excluded any possibility of awarding damages for the breaches that occurred during the international flights taken by the applicants. The Montréal Convention is an international agreement providing for a uniform liability scheme for international air carriers and users of means of

international carriage by air. It sets out a limited set of circumstances which can give rise to compensation. Subsection 77(4) of the OLA, which gives the Court jurisdiction to grant a remedy, commands a broad and liberal

interpretation and damages are undeniably among the remedies available thereunder. The Montréal Convention clearly does not impose linguistic duties. The respondent is the only carrier subject to the OLA and the matters that this legislation addresses are unrelated, as such, to international carriage. A conflict thus existed between the Court’s remedial power under subsection 77(4) of the OLA and the Montréal Convention and it did not seem possible to reconcile the two instruments. Subsection 77(4) of the OLA had to prevail over the Montréal Convention for two reasons. In specifying that the provisions of

Part IV (subsection 82(1) of the OLA) prevail, Parliament implicitly gave precedence to the remedy provisions by means of which breaches of the duties set out in

Part IV of this statute may be enforced. There was no need for Parliament to expressly provide for the primacy of the remedy set out at subsection 77(1) because this flows from its incidental nature in respect of the rights it aims to enforce. To rule otherwise would render meaningless the primacy given to the provisions listed at subsection 82(1) of the OLA. Also, in giving precedence to subsection 77(4) of the OLA over the Montréal Convention, effect was being given to the quasi- constitutional status of the OLA without violating Canada’s treaty obligations.

While giving precedence to the OLA resulted in a displacement of the Montréal Convention, it did not compromise Canada’s international obligations or undermine their integrity. The applicants were awarded damages given that their language rights were clearly very important to them and the violation thereof caused them a moral prejudice, pain and suffering and loss of enjoyment of their vacation. Furthermore, awarding damages in this case would serve the purpose of emphasizing the importance of the rights at issue and would have a deterrent effect.

As to whether it was appropriate and just to make institutional orders against the respondent, the duties that were imposed thereon by Parliament, in particular under the Air Canada Public Participation Act and the OLA required that it make every reasonable effort to fulfill its duties.

The evidence showed that even though the respondent was making efforts to comply with its linguistic duties, problems persisted, and both the respondent and Jazz, a contract carrier for the respondent, did not completely develop 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 led to the conclusion that there was a systemic problem at the respondent and therefore that it was fair and appropriate to require that the respondent make every reasonable effort to fulfill all its duties under

Part IV of the OLA in particular. The applicants’ request for exemplary and punitive damages was based on their claim that the respondent’s breaches were of a systemic nature and that its employees had an arrogant attitude. The attitude of the respondent’s employees and the respondent itself in no way called for an award of exemplary damages. The evidence did not reveal a malicious, oppressive and high-handed attitude on the part of the respondent that would call for such a remedy.

While the respondent did not do enough to comply with its duties under the OLA, its breaches were not such that the imposition of a “penalty” was warranted. STATUTES AND REGULATIONS CITED Air Canada Public Participation Act , R.S.C., 1985 (4th Supp.), c. 35, s. 10 (as am. by S.C. 2000, c. 15, s. 18).

Canada Business Corporations Act , R.S.C., 1985, c. C-44. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 16, 20, 23, 24(1). Carriage by Air Act , R.S.C., 1985, c. C-26. Charter of Human Rights and Freedoms , R.S.Q., c. C-12. Federal Courts Rules , SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 400(1) (as am. by SOR/2002-417, s. 25(F)), (3) (as am. by SOR/2010-176, s. 11). Official Languages Act , R.S.C. 1970, c. O-2.

Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, ss. 2, 3 “federal institution” (as am. by S.C. 2002, c. 7 , s. 224; 2004, c. 7, s. 26 ), 21, 22, 23, 25, 56, 58, 60, 63, 64, 73, 76, 77 (as am. by S.C. 2005, c. 41, s. 2 ), 78(1),(3), 79, 82(1). Official Languages (Communications with and Services to the Public) Regulations , SOR/92-48, ss. 7(1),(2),(3),(4)( c ). 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. 1, 17, 18, 19, 21, 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, Arts. 17, 24. CASES CITED applied: Vancouver (City) v. Ward , 2010 SCC 27 , [2010] 2 S.C.R. 28, 321 D.L.R. (4th) 1, [2010] 9 W.W.R. 195; de Montigny v. Brossard (Successtion) , 2010 SCC 51 , [2010] 3 S.C.R. 64, 325 D.L.R. (4th) 577, 78 C.C.L.T. (3d) 1; Thibodeau v. Air Canada , 2005 FC 1156 , [2006] 2 F.C.R. 70, 292 F.T.R. 67. distinguished: 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; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, 218N.S.R. (2d) 311, 232 D.L.R. (4th) 577; Fédération Franco-Ténoise v. Canada (Attorney General), 2006 NWTSC 20. considered: DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194, 302 D.L.R. (4th) 632, 384 N.R. 50; R. v. 974649 Ontario Inc., 2001SCC 81, [2001] 3 S.C.R. 575, 206 D.L.R. (4th) 444, 159 C.C.C. (3d) 321; Morten v. Air Canada, 2009 CHRT 3, 66 C.H.R.R. D/65;Béliveau St-Jacques v.

Fédération des employées et employés de services publics inc., (SCC), [1996] 2 S.C.R. 345,(1996), 136 D.L.R. (4th) 129, 36 C.R.R. (2d) 189; 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); King v. American Airlines, Inc., 284 F.3d 352 (2d Cir. 2002); Carey v.United Airlines, 255 F.3d 1044 (9th Cir. 2001); Canada (Commissioner of Official Languages) v. Air Canada, (F.C.T.D.); Canada (Commissioner of Official Languages) v. Air Canada (1999), 240 N.R. 390 (F.C.A.); Finlay v.

Canada (Minister ofFinance), (SCC), [1986] 2 S.C.R. 607, (1986), 33 D.L.R. (4th) 321, 23 Admin. L.R. 197; Canadian Council of Churchesv. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236, (1992), 88 D.L.R. (4th) 193, 2Admin. L.R. (2d) 229; Thibodeau v. Air Canada, 2005 FC 1621, 284 F.T.R. 79, affd 2007 FCA 115, 375 N.R. 195. referred to: Canada (Attorney General) v. Viola, (FCA), [1991] 1 F.C. 373, (1991), 123 N.R. 83 (C.A.); R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193, 134 C.C.C. (3d) 481; Lavigne v.

Canada (Office of theCommissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, 214 D.L.R. (4th) 1, 289 N.R. 282; Simard c. Air Canada,2007 QCCS 4452; Chau v. Delta Air Lines Inc. (2003), (ON SC), 67 O.R. (3d) 108, [2003] O.T.C. 945 (Sup. Ct.);Plourde v. Service aérien FBO inc. (Skyservice), 2007 QCCA 739; Walton v. Mytravel Canada Holdings Inc., 2006 SKQB 231, 26C.P.C. (6th) 253, 280 Sask. R. 1; Connaught Laboratries Ltd. v. British Airways (2002), (ON SC), 61 O.R. (3d) 204,217 D.L.R. (4th) 717, [2002] O.T.C. 639 (Sup. Ct.); Lavigne v. Canada Post Corp., 2009 FC 756, 350 F.T.R. 46.

AUTHORS CITED Côté, Pierre-André. The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011. Dempsey, Paul Stephen and Michael Milde. International Air Carrier Liability: The Montreal Convention of 1999, Montréal: McGillUniversity Centre for Research of Air & Space Law, 2005. Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis Canada, 2008. APPLICATION made under subsection 77(1) of the Official Languages Act seeking damages in relief against the respondent on thebasis that it failed to fulfill its duties or obligations under

Part IV of the Act to ensure that the applicants receive services in French.Application allowed. APPEARANCES Michel Thibodeau and Lynda Thibodeau on their own behalf. David Rheault and Louise-Hélène Sénécal for respondent. Pascale Giguère and Ghady Thomas for intervener. SOLICITORS OF RECORD Air Canada Centre Law Branch (1276), Dorval, Quebec, for respondent. Office of the Commissioner of Official Languages, Legal Affairs Branch, Ottawa, for intervener. Table of Contents Paragraph I. Issues 4 II. Facts and legislative framework 5 III. Analysis 30 A. Did Air Canada breach its linguistic duties towards the applicants? 30 B. What remedy is appropriate and just in the circumstances? 36

(1) Is it appropriate and just to award damages to the applicants? 46 (

a) Does the Montréal Convention limit the Court’s remedial power to award damages?48 (

b) Amount of damages 84

(2) Is it appropriate and just to make institutional orders against Air Canada? 91

(3) Is it appropriate and just to award punitive and exemplary damages? 156 IV. Costs 165 The following is the English version of the reasons for judgment and judgment rendered by

[1] Bédard J.: This is an application made under subsection 77(1) [as am. by S.C. 2005, c. 41, s. 2] of the Official Languages Act,R.S.C., 1985 (4th Supp.), c. 31 (OLA). [2] Michel Thibodeau and Lynda Thibodeau (the applicants or Mr. and Mrs. Thibodeau) submit that the respondent, Air Canada,failed to fulfill its duties or obligations under

Part IV [ss. 21–33] of the OLA to ensure them services in French, and are seeking damagesin relief. They also submit that Air Canada’s breaches of its official languages duties are systemic; therefore, they are asking the Court tomake institutional orders against Air Canada and to order it to pay exemplary and punitive damages. [3] The applicants have made separate applications, which were joined by an order of Prothonotary Aronovitch, dated May 5, 2010.Furthermore, it was agreed at the hearing that only Mr. Thibodeau would make representations, which would be entered in the file of hisspouse, Mrs. Thibodeau. I.

Issues [4] This application raises the following issues: A. Did Air Canada breach its linguistic duties towards the applicants? B. What remedies are appropriate and just in the circumstances?

(1) Is it appropriate and just to award damages to the applicants?

(2) Is it appropriate and just to make institutional orders against Air Canada?

(3) Is it appropriate and just to award exemplary and punitive damages? II. Facts and legislative framework [5] This application was filed after each applicant had filed eight complaints with the Commissioner of Official Languages (theCommissioner) regarding the services they received from Air Canada on two trips they made between January and May 2009.

Theapplicants claimed that on various occasions, at the Atlanta, Ottawa and Toronto airports and aboard three flights between Canada andthe United States, they did not receive the services in French to which they were entitled. [6] To properly grasp the nature of this dispute, it is useful to identify the legislation applicable to Air Canada with regard tolanguage rights. [7] The OLA, which applies to federal institutions, gives concrete expression to the principle of equality of Canada’s two officiallanguages, which is enshrined at

section 16 of the Canadian Charter of Rights and Freedoms [being

Part I of the Constitution Act, 1982,Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (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 (C.A.) (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), 2009SCC 8, [2009] 1 S.C.R. 194 (DesRochers)). [8] According to

section 2 of the OLA, the purpose of this statute is to ensure respect for English and French as official languages,their equality of status and equal rights and privileges concerning their use in all federal institutions with respect to various aspects offederal institutions’ activities, including communications with, or the provision of services to, the public. [9] The OLA concerns the federal institutions identified at

section 3 [as am. by S.C. 2002, c. 7, s. 224; 2004, c. 7, s. 26] of thisstatute. [10] 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,R.S.C., 1985 (4th Supp.), c. 35 (ACPPA) provided for the continuance of Air Canada under the

Canada Business Corporations Act[R.S.C., 1985, c. C-44]. Otherwise, under

section 10 [as am. by S.C. 2000, c. 15, s. 18] of the ACPPA, Air Canada is still subject to theOLA. 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. [11]

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.

Where communications and services must be in both official languages 22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of 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 office or facility in that language. Travelling public 23.

(1) For greater certainty, every federal institution that provides services or makes them available to the travelling public has the duty to ensure that any member of the travelling public can communicate with and obtain those services in either official language from any office or facility of the institution in Canada or elsewhere where there is significant demand for those services in that language. 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. [ 12 ] 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; [ 13 ] Air Canada acknowledges that it is subject to the OLA and that, under

section 25 of the OLA , it is responsible for the services provided by Jazz, with which it has a capacity purchase agreement. [1] The flights identified as those on which there is significant demand for services in French because at least 5 percent of the travelling public on that route requests service in that language are determined by surveys conducted every three years by Air Canada under the Treasury Board’s supervision. [ 14 ] The alleged breaches of Air Canada’s language duties, which led to this dispute, occurred on two trips made by the applicants, which involved routes between Canada and the United States.

The applicants made a first round trip between Ottawa and Atlanta, Georgia, with the following flight itineraries: DATE FLIGHT ORIGIN DESTINATION January 23, 2009 AC457 Ottawa Toronto January 23, 2009 AC8627 Toronto Atlanta DATE FLIGHT ORIGIN DESTINATION

February 1, 2009 AC8622 Atlanta Toronto February 1, 2009 AC484 Toronto Ottawa [ 15 ] The applicants submit that, on five occasions on this trip, Air Canada breached its duty to provide services in French to them: • No services in French on board (Jazz-operated) flight AC8627 flying the Toronto-Atlanta route on January 23, 2009; • No services in French at the check-in counter for (Jazz-operated) flight AC8622 at the Atlanta airport on February 1, 2009; • No services in French at the boarding gate for (Jazz operated) flight AC8622 at the Atlanta airport on February 1, 2009; • No services in French on board flight AC8622 flying the Atlanta-Toronto route on February 1, 2009; • Announcement to passengers made in English only regarding a change of baggage carousel at the Ottawa airport on February 1, 2009. [ 16 ] The applicants made a second trip, a round trip between Toronto and St.

Maarten with a connection in Philadelphia on the departing flight and in Charlotte, North Carolina, on the returning flight: DATE FLIGHT ORIGIN DESTINATION May 2, 2009 AC7916 Toronto Philadelphia May 3, 2009 US1209 Philadelphia St. Maarten DATE FLIGHT ORIGIN DESTINATION May 11, 2009 US1556 St.

Maarten Charlotte May 12, 2009 AC7923 Charlotte Toronto [ 17 ] The applicants submit that, on two occasions on this trip, Air Canada breached its duty to ensure that they received services in French: • No services in French on board (Jazz-operated) flight AC7923 flying the route from Charlotte to Toronto on May 12, 2009; • Announcement to passengers regarding baggage collection at the Toronto airport on May 12, 2009, made in English only. [ 18 ] The applicants filed a complaint with the Commissioner regarding each of these incidents. [ 19 ] The Commissioner plays an important role in official languages protection.

Its mandate is set out at

section 56 of the OLA : Duty of Commissioner under Act 56.

(1) It is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society. [ 20 ]

Section 58 of the OLA gives the Commissioner the authority to investigate any complaint regarding

an act or omission to the effect that, in any particular instance or case, the status of an official language was not or is not being recognized, any provision of any Act of Parliament or regulation relating to the status or use of the official languages was not or is not being complied with, or the spirit and intent of the OLA was not or is not being complied with. [ 21 ] Upon completion of his investigation, the Commissioner may report his or her opinion and the reasons therefore and make such recommendations as he or she sees fit (sections 63 and 64).

However, the Commissioner does not have the authority to award remedies. [ 22 ] In this case, the Commissioner did not accept the complaints as to the absence of services in French at the Air Canada check-in counter and gate at the Atlanta airport because it was not an airport where there is significant demand requiring the provision of services in French. The Commissioner also did not accept the complaint regarding the announcement made to passengers at the Ottawa airport because the Commissioner was of the opinion that he could not confirm whether Air Canada had committed the impugned acts.

However, the Commissioner did confirm that the other complaints filed by the applicants had merit. [ 23 ] According to subsection 77(1) of the OLA , a remedy is available to any person who has made a complaint to the Commissioner in respect of a right or duty provided by various provisions of the OLA, including the sections under

Part IV: Application for remedy 77.

(1) Any person who has made a complaint to the Commissioner in respect of a right or duty under sections 4 to 7, sections 10 to 13 or

Part IV, V or VII, or in respect of

section 91, may apply to the Court for a remedy under this Part. [ 24 ]

Section 76 specifies that the Federal Court has jurisdiction to hear this application. [ 25 ] After the Commissioner’s report was filed, the applicants made this application. [ 26 ] Subsection 77(4) of the OLA gives the Court jurisdiction to grant a remedy. 77. … Order of Court

(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.

[ 27 ] Under subsection 78(1) of the OLA , the Commissioner has the power to apply to the Court for a remedy after carrying out an investigation on a complaint. The Commissioner may also apply for leave to intervene in proceedings (subsection 78(3)). In this case, the Commissioner applied for, and was granted, intervener status. [ 28 ] In Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency) , 2004 FCA 263 , [2004] 4 F.C.R. 276 ( Forum des maires ), [2] the Federal Court of Appeal discussed the respective mandates of the Commissioner and the Court and the nature of the remedy provided for by

section 77 [as am. by S.C. 2005, c. 41, s. 2 ] of the OLA . Justice Décary, writing for the Court, made the following comments (at paragraphs 16–17): The Commissioner, it is important to keep in mind, is not a tribunal. She does not, strictly speaking, render a decision; she receives complaints, she conducts an inquiry, and she makes a report that she may accompany with recommendations (subsections 63(1), 63(3)).

If the federal institution in question does not implement the report or the recommendations, the Commissioner may lodge a complaint with the Governor in Council (subsection 65(1)) and, if the latter does not take action either, the Commissioner may lodge a complaint with Parliament (subsection 65(3)). The remedy, at that level, is political.

However, to ensure that the Official Languages Act has some teeth, that the rights or obligations it recognizes or imposes do not remain dead letters, and that the members of the official language minorities are not condemned to unceasing battles with no guarantees at the political level alone, Parliament has created a “remedy” in the Federal Court that the Commissioner herself (section 78) or the complainant (section 77) may use.

This remedy, the scope of which I will examine later, is designed to verify the merits of the complaint, not the merits of the Commissioner’s report ( subsection 77(1) ), and, where applicable, to secure relief that is appropriate and just in the circumstances ( subsection 77(4) ). [ 29 ] In the light of the relevant enactments, I must first ascertain whether the applicants’ complaints have merit and whether Air Canada breached its duty to ensure that the applicants received services in French in accordance with

Part IV of the OLA . If so, I will have to decide which remedy is appropriate and just. III. Analysis A. Did Air Canada breach its linguistic duties towards the applicants? [ 30 ] The application filed by Mr. and Mrs. Thibodeau initially concerned all of the complaints they filed with the Commissioner. In the course of proceedings, Air Canada admitted certain breaches and Mr. and Mrs. Thibodeau withdrew some of their allegations. [3] As such, five incidents remain at issue in this case, four of which Air Canada acknowledges having breached its duty to provide services in French.

These four incidents are the following: • No services in French on board flight AC8627 flying the Toronto-Atlanta route on January 23, 2009: Air Canada acknowledges that there was no bilingual flight attendant on this flight, although it was a flight on which there was significant demand for services in French. • No translation of an announcement made in English by the pilot concerning the arrival time and weather on flight AC8622 flying the Atlanta-Toronto route on February 1, 2009: Air Canada acknowledges that the announcement should have been translated by the flight attendant (who was bilingual) because it was a flight on which there was significant demand for services in French. • No services in French on board flight AC7923 flying the Charlotte-Toronto route on May 12, 2009: Air Canada acknowledges that there was no bilingual flight attendant on this flight and that it was a flight on which there was significant demand for services in French. • Announcement made in English only to passengers concerning baggage collection at the Toronto airport on May 12, 2009: Air Canada admits that this announcement should have been made in English and French because the Toronto airport is an airport where there is significant demand for services in French. [ 31 ] Air Canada, however, denies having breached its duties with respect to the announcement made to passengers concerning a change of baggage carousel at the Ottawa airport on February 1, 2009.

Air Canada denies that it was its responsibility to make those announcements and submits that the airport authority had this responsibility since the airlines did not have access to the transmission device to make those announcements themselves.

That being said, Air Canada acknowledges that there is significant demand for services in French at the Ottawa airport and submits that the situation has now been corrected and that it can now make the announcements to passengers itself. [ 32 ] The Commissioner had not admitted that complaint because he had been unable to determine, with absolute certainty, whether the airport authority or Air Canada had committed the offence.

The Commissioner wrote the following in his report: [ translation ] We received confirmation from Air Canada that, since the announcement reported malfunctioning equipment, it had been made by a representative of the Ottawa Airport Authority rather than by the employees at the Air Canada baggage counter. Therefore, we informed you by letter on June 16, 2009, that responsibility for this complaint was transferred to the Ottawa Airport Authority. Our investigation of this institution showed that Air Canada is responsible for announcements concerning baggage collection.

In short, from the facts garnered, we cannot determine with certainty which institution committed the offence you described. However, the investigation did reveal that neither Air Canada management at this airport nor the Ottawa Airport Authority was very well versed in their respective official language responsibilities.

After our involvement in this file, we asked the Air Canada manager at the Ottawa airport and the person in charge of linguistic matters at the Ottawa Airport Authority to meet in order to clarify Air Canada’s linguistic duties on airport premises. [ 33 ] I agree with the Commissioner; given the evidence, it is not possible to decide whether or not Air Canada breached its duties when this incident occurred.

[34] However, I conclude that, in the light of Air Canada’s admissions, it did breach its duty to provide services in French four times,three times during a flight and once when making the baggage collection announcement at the Toronto airport. [35] Having concluded that Air Canada breached its duties under the OLA, this Court must now examine its remedial power and therelief sought by the applicants. B. What remedy is appropriate and just in the circumstances? [36] The language of subsection 77(4) of the OLA and of subsection 24(1) of the Charter is the same language and the parties agreethat the principles of

interpretation applying to subsection 24(1) of the Charter may be usefully followed with regard to the scope of theCourt’s power to grant a remedy under subsection 77(4) of the OLA. In Forum des maires, at paragraph 56, the Federal Court of Appealalso adopted this view. [37] In DesRochers, above, Justice Charron reiterated as follows, at paragraph 31, the principles that must guide the courts in theirinterpretation of the provisions of the OLA devoted to language rights: Before considering the provisions at issue in the case at bar, it will be helpful to review the principles that govern the

interpretation oflanguage rights provisions. Courts are required to give language rights a liberal and purposive

interpretation. This means that the relevantprovisions must be construed in a manner that is consistent with the preservation and development of official language communities inCanada (R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, at para. 25). Indeed, on several occasions this Court has reaffirmedthat the concept of equality in language rights matters must be given true meaning (see, for example, Beaulac, at paras. 22, 24 and 25;Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 31).

Substantive equality, as opposed to formalequality, is to be the norm, and the exercise of language rights is not to be considered a request for accommodation. [38] The Supreme Court of Canada has made many pronouncements on the scope and

interpretation of subsection 24(1) of theCharter. In R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 (Dunedin), at paragraph 18, the Supreme Court stated thatsubsection 24(1) of the Charter called for a broad and purposive

interpretation, that it formed a vital part of the Charter and that it mustbe construed generously, in a manner that best ensures the attainment of its objects. The Court also noted that it was a remedial provisioncommanding a large and liberal

interpretation and reiterated that the language of subsection 24(1) of the Charter [at paragraph 18]“appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights.” The Court alsoemphasized the importance of interpreting subsection 24(1) so as to arrive at a full, effective and meaningful remedy.

In this regard, theCourt made the following remarks (at paragraphs 19–20): If the Court’s past decisions concerning s. 24(1) can be reduced to a single theme, it is that s. 24(1) must be interpreted in a manner thatprovides a full, effective and meaningful remedy for Charter violations: Mills, supra, at pp. 881-82 (per Lamer J.), p. 953 (per McIntyreJ.); Mooring, supra, at paras. 50-52 (per Major J.). As Lamer J. observed in Mills, s. 24(1) “establishes the right to a remedy as thefoundation stone for the effective enforcement of Charter rights” (p. 881).

Through the provision of an enforcement mechanism, s. 24(1)“above all else ensures that the Charter will be a vibrant and vigorous instrument for the protection of the rights and freedoms ofCanadians” (p. 881). Section 24(1)’s

interpretation necessarily resonates across all Charter rights, since a right, no matter how expansive in theory, is only asmeaningful as the remedy provided for its breach. [Emphasis in original.] [39] In Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 (Doucet-Boudreau), the SupremeCourt considered the nature of the remedies that are possible under subsection 24(1) of the Charter in a case where the right to educationin the minority language was at issue. The trial judge had found that the government had failed to prioritize the

section 23 Charter rightsand had delayed complying with its duties, despite reports showing that the rate of assimilation had reached a critical level. The judgeruled that there had been a

section 23 Charter violation and ordered the provincial government and the school board to make their “bestefforts” to provide homogeneous French-language school facilities and programs by certain deadlines. The judge also retainedjurisdiction to receive reports on the authorities’ efforts.

The dispute before the Supreme Court concerned the extent of the remedialpower set forth at subsection 24(1) of the Charter. [40] The Court gave particular attention to the meaning of the words “‘appropriate and just in the circumstances’” and stated that thedetermination of an appropriate and just order “calls on the judge to exercise a discretion based on his or her careful perception of thenature of the right and of the infringement, the facts of the case, and the application of the relevant legal principles” (paragraph 52).

TheCourt refrained from articulating a detailed definition of this phrase but did set out a certain number of general, relevant factors. TheCourt made the following remarks (at paragraphs 55–59): First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedomsof the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. Ameaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right wasinfringed or denied….

Second, an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy.As discussed above, a court ordering a Charter remedy must strive to respect the relationships with and separation of functions amongthe legislature, the executive and the judiciary…. The essential point is that the courts must not, in making orders under s. 24(1), departunduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.

Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court. Itwill not be appropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestlyunsuited. The capacities and competence of courts can be inferred, in part, from the tasks with which they are normally charged and forwhich they have developed procedures and precedent. Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party

against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right. Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter . As such, s. 24, because of its broad language and the myriad of roles it may play in cases, should be allowed to evolve to meet the challenges and circumstances of those cases.

That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case. [ 41 ] More recently, the Supreme Court decided in Vancouver (City) v.

Ward , 2010 SCC 27 , [2010] 2 S.C.R. 28 ( Ward ) that under subsection 24(1) of the Charter , damages could be awarded for a Charter violation. [ 42 ] The principles set out by the Supreme Court in Doucet-Boudreau , above, were followed by the Federal Court of Appeal with regard to the application of the OLA in Forum des maires .

In that decision, the Federal Court of Appeal also stated that although the alleged violations must be assessed as of the time of the filing of the complaint, the appropriate relief under subsection 77(4) of the OLA must be determined in view of the situation at the time the case is heard. The Court may therefore take account of developments in the situation and the corrective measures that have been taken. In that regard, Justice Décary made the following remarks (at paragraphs 19– 20): There are some important implications to the fact that the remedy under

Part X is basically similar to an action. For example, the judge hears the matter de novo and is not limited to the evidence provided during the Commissioner’s investigation. The remedy is constantly shifting in the sense that even if the merit of the complaint is determined as it existed at the time of the alleged breach, the remedy, if there is one that is appropriate and just, must be adapted to the circumstances that prevail at the time when the matter is adjudicated.

The remedy will vary according to whether or not the breach continues. [ 43 ] In the light of these principles, what, then, are the just and appropriate remedies in the case at bar? The applicants are seeking a number of remedies. First, they are seeking a declaratory judgment that Air Canada breached its duties under the OLA and violated their language rights, a letter of apology and damages. The applicants also submit that Air Canada’s breaches of its linguistic duties are systemic and they are asking the Court to take this element into account in determining an appropriate and just remedy.

In that respect, they are asking the Court to make institutional orders against Air Canada and to order it to pay punitive and exemplary damages. [ 44 ] Air Canada does not object to this Court’s rendering a declaratory judgment to the effect that it breached its language duties towards the applicants. It also consents to give the applicants a letter of apology. Indeed, the applicants and Air Canada have submitted draft letters of apology to me. However, Air Canada objects to any further remedy and denies any systemic problems. [ 45 ] I will deal with the remedies that are in dispute.

(1) Is it appropriate and just to award damages to the applicants? [ 46 ] Citing Ward , the applicants are seeking $5 000 for each violation for a total of $25 000. [4] They are also relying on Morten v. Air Canada , 2009 CHRT 3 , 66 C.H.R.R. D/65 (available on CanLII), in which the Canadian Human Rights Tribunal awarded $10 000 for pain and suffering resulting from

an act of discrimination by Air Canada. [5] [ 47 ] Air Canada, for its part, submits that the Court’s power to award damages is limited by the Montréal Convention [ Convention for the Unification of Certain Rules for 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], which, it alleges, excludes any possibility of awarding damages for the breaches that occurred during the international flights taken by the applicants. Thus, it is submitted that the Court only has the power to award damages for the breach related to the passenger announcement at the Toronto airport. (

a) Does the Montréal Convention limit the Court’s remedial power to award damages? [ 48 ] The Montréal Convention is an international agreement providing for a uniform liability scheme for international air carriers and users of means of international carriage by air. The Montréal Convention’s predecessor was another international agreement, the Warsaw Convention [ Convention for the Unification of Certain Rules for 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], signed by a number of countries in 1929. That agreement instituted a unified liability regime for the international carriage of passengers, baggage and cargo in lieu of the domestic law of each signatory country.

Among other things, this regime subjected air carriers to a set of rules and strict liability in the event of death or bodily injury resulting from an accident occurring during international carriage, loss or theft of baggage, loss of cargo or delayed flights. [ 49 ] The Warsaw Convention, signed by Canada, was incorporated into domestic Canadian law through the Carriage by Air Act , R.S.C., 1985, c. C-26. That convention was then amended a few times and, in 1999, replaced by the Montréal Convention, which came into force in November 2003.

The Carriage by Air Act was amended in December 2001 so that Canadian authorities could ratify and adopt the Montréal Convention, which is thus an update of the Warsaw Convention.

This convention maintains the principle of a uniform liability regime for air carriers, although it changes some of the conditions thereof. [ 50 ] Like the Warsaw Convention, the Montréal Convention sets out a limited set of circumstances which can give rise to compensation. [ 51 ] 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 contractor in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention withoutprejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

In any suchaction, punitive, exemplary or any other non-compensatory damages shall not be recoverable. [52] There is no dispute that the flights in issue in this case meet the definition of “international carriage” set out in the MontréalConvention, since they were flights between Canada and the United States and vice versa. There is also no dispute that the damagessought by Mr. and Mrs.

Thibodeau cannot be related to the categories of compensable damages set out at Articles 17 to 19 of theMontréal Convention. [53] Air Canada submits that the Montréal Convention, like the Warsaw Convention, provides for a complete international liabilityregime that totally displaces the signatory countries’ domestic law when an event giving rise to liability occurs during internationalcarriage.

Therefore, it is submitted that the Montréal Convention applies immediately when a situation potentially giving rise to liabilityfor an air carrier occurs during international carriage, regardless of whether the cause of action is set out in the Convention or not. If acause of action related to an incident or event which occurs during international carriage is not set out in the Convention, it simplycannot give rise to compensation by damages. [54] Air Canada cites

Article 29 of the Montréal Convention which, in its opinion, clearly sets out the limited, exclusive liabilityframework for all air carriers for events which occur during international carriage. Air Canada also submits that if there were any doubtas to the scope of

Article 24 of the Warsaw Convention, [6]

Article 29 of the Montréal Convention, which provides that “any action fordamages, however founded, whether under this Convention or in contract or in tort or otherwise” (emphasis added), has clarified thescope of the convention and excludes any claim in damages, whatever the cause of the damage. Thus, a breach of the Act that occurredduring international carriage could not give rise to damages. [55] Air Canada submits that this

interpretation, upheld by Canadian and international case law, is the only one consistent with thepurpose of the Convention, that is the protection of both carriers and passengers and to strike a balance, a compromise, between rightsliabilities. [56] Air Canada submits that the Court must adopt an

interpretation of subsection 77(4) of the OLA that harmonizes with theConvention and that it is not appropriate and just to award damages when breaches of the OLA occur during international carriage. Insupport of this argument, Air Canada is relying on the principles of

interpretation that there is a presumption of conformity with superiorrules and with international law. Parliament is deemed, unless it clearly expresses itself otherwise, to have intended to comply with thetreaty obligations of the Crown and Air Canada submits that nothing in the OLA indicates that Parliament intended to avoid itsinternational obligations. It submits that, to the contrary, subsection 82(1) of the OLA, which lists the provisions of the OLA that prevailover incompatible provisions in any other Act, does not include subsection 77(4) of the OLA.

This means that Parliament did not intendto give overriding status to the Court’s remedial power under the OLA. [57] Air Canada submits that there is an analogy between the case at bar and Béliveau St-Jacques v. Fédération des employées etemployés de services publics inc., (SCC), [1996] 2 S.C.R. 345 (available on CanLII), in which the Supreme Courtrecognized the exclusive nature of the Quebec employment injury compensation system, which excludes claims made under the QuebecCharter of Human Rights and Freedoms [R.S.Q., c. C-12] since the legislative intent was to set up a complete and exclusive system.

AirCanada submits that this is also the case for the compensation regime set out in the Montréal Convention. [58] The Commissioner and the applicants take issue with Air Canada’s argument, but it is the Commissioner who, for the most part,made the relevant argument. The Commissioner submits that the Montréal Convention in no way limits the Court’s remedial powerunder subsection 77(4) of the OLA. [59] He submits, first, that there is no conflict between the Montréal Convention and the OLA, because their respective ambits arecompletely different.

He submits that the Montréal Convention applies to international carriage by air and sets out rules of liability forspecific situations bearing no relation to the OLA and that the claim and compensation mechanism “in case of death or bodily injury”resulting from an “accident” is simply not relevant with regard to the application of the OLA, which concerns the respect of Canada’sofficial languages. The Commissioner submits that the Convention aims to establish uniform rules governing compensation: the samerules must apply in all signatory countries, for similar situations.

He argues that the word “otherwise” found at

Article 29 of the MontréalConvention must mean any other proceeding of the same nature. He submits that Air Canada is the only air carrier in the world that issubject to the remedy provided by the OLA and that it would be illogical to conclude that the signatory countries and Canada inparticular wanted to implicitly [translation] “achieve uniformity” of the official language rules that apply only to Air Canada. [60] In the alternative, the Commissioner submits that if there is a conflict between the Montréal Convention and the OLA, the lattermust prevail.

His argument is based on the OLA’s quasi-constitutional status and on subsection 82(1) of this statute. Contrary to AirCanada, the Commissioner submits that there was no need for subsection 82(1) of the OLA to specify that the remedy provided at

Part X[ss. 76–81] of the OLA must prevail; this flows implicitly from the incidental nature of the remedy. The Commissioner submits that theOLA contains two categories of provisions: the first being substantive provisions that impose duties and the second, provisions settingout procedural avenues available in the event of a breach. Parliament chose to give precedence to certain provisions imposing duties, andthe remedy set out at subsection 77(1) is purely incidental in nature. The Commissioner submits that it would be absurd to assume thatthe Parliament legislator wanted to impose the primacy of the language rights set out at

Part IV of the OLA without ensuring that thoserights could be enforced by effective remedies. That would have the effect of rendering the primacy of

Part IV of the OLA, set out at

subsection 82(1) of that statute, illusory. [ 61 ] For my part, I consider, on the following grounds, that there is a conflict between subsection 77(4) of the OLA and the Montréal Convention. [ 62 ] I have already discussed the

interpretation of subsection 77(4) of the OLA in the

section above. It commands a broad and liberal

interpretation, and damages are undeniably among the remedies available under subsection 77(4) of the OLA. [ 63 ] Let us now examine the ambit of the Montréal Convention. [ 64 ] The Montréal Convention was incorporated into the domestic law of Canada through the Carriage by Air Act , and, since it is an international agreement, it should be interpreted, in the light of the case law developed in the signatory countries, in accordance with the principles of

interpretation applicable to international agreements. [ 65 ] In their treatise on the liability of international air carriers and the Montréal Convention, [7] Paul Stephen Dempsey and Michael Milde summarize the principles of

interpretation of the Montréal Convention as follows, at pages 45 and 47: The 1999 Montreal Convention [M99] is an international multilateral treaty and its construction and

interpretation must be governed, inter alia , by the international law of treaties; the law of treaties has been codified in the 1968 UN Vienna Convention on the Law of Treaties. Since the fundamental provisions of the Vienna Convention codify the customary international of treaties, the Convention is, in principle, applicable, even for States that have not ratified it. [Footnote omitted.] … The provisions of the Vienna Convention on the Law of Treaties reflect the common national principles of the

interpretation of the legal norms - grammatical

interpretation (ordinary meaning of the words), logical

interpretation (in the context of the legal source) and teleological

interpretation (in the light of the aim and purpose of the legal source).

Article 32 of the Vienna Convention recognizes also the historic

interpretation (preparatory work) as a supplementary means of

interpretation. [ 66 ] Professor Sullivan [8] made the following observations on the

interpretation of international agreements incorporated into domestic law: When an international convention is incorporated, in whole or in part, it acquires the status and force of domestic legislation without being changed in any way. Although it becomes part of domestic legislation, it retains its identity as an instrument of international law and thus carries its international law baggage with it. In interpreting an incorporated convention, the court appropriately applies international law principles of

interpretation, looks to international law materials and relies on

interpretations of the incorporated law by international courts as well as courts in other jurisdictions. [ 67 ] At first glance, I am tempted to accept the Commissioner’s argument that the Montréal Convention cannot apply in this case because it concerns situations that are totally foreign to the ambit of the OLA and is in no way concerned with breaches of that statute.

The characteristic of a convention whose purpose is to achieve uniformity of liability and compensation rules is that it applies in circumstances that are likely, if they were to occur in the various signatory countries, to be governed by different legal rules and therefore lead to different results depending on where the event giving rise to liability takes place. The purpose of such a convention is to avoid inconsistencies and contradictions.

Therefore, the ambit of the international convention must, in my opinion, be defined by what is common to all of the signatory countries; the aim is to avoid, with regard to certain events and situations, different legal consequences from one signatory country to the next. [ 68 ] In Sidhu v. British Airways , [1997] 1 All E.R. 193 ( Sidhu ) , which is the authority on the

interpretation of the Warsaw Convention, the House of Lords commented as follows on the purpose of the Convention (at pages 212–213): I believe that the answer to the question raised in the present case is to be found in the objects and structure of the convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the High Contracting Parties without reference to the rules of their own domestic law.

The convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals—and the liability of the carrier is one of them—the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law. … The conclusion must be therefore that any remedy is excluded by the convention, as the set of uniform rules does not provide for it. The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the convention.

It would lead to the setting alongside the convention of an entirely different set of rules which would distort the operation of the whole scheme. [ 69 ] The purpose of the Convention was also discussed by the Supreme Court of the United States in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U.S. 155 (2d Cir. 1999) ( Tseng ), another leading authority on the

interpretation of the Warsaw Convention and the Montréal Convention. The Court commented as follows [at page 169]: The cardinal purpose of the Warsaw Convention, we have observed is to “achieve [**672] uniformity of rules governing claims arising from international air transportation.” [ 70 ] It is clear that the Montréal Convention does not impose linguistic duties. Air Canada is the only carrier subject to the OLA , and the matters that this legislation addreses are unrelated, as such, to international carriage and also do not concern the other countries that are signatories to the Convention. Therefore, I am tempted to conclude that, given the scope of

Article 29, this provision does not

exclude remedies based on causes of action that are foreign to the purpose and ambit of the Convention. [71] However, I cannot disregard the case law pertaining to the scope of the Warsaw Convention and the Montréal Convention. [72] In Sidhu, above, the House of Lords adopted a very broad

interpretation of

Article 24 of the Warsaw Convention by excludingany possibility of compensation for grounds not set out in the Convention. In that case, passengers had instituted an action against BritishAirways and were seeking damages for bodily injuries and pain and suffering resulting from their having been taken hostage after theairplane on which they were travelling landed in Kuwait to refuel when the Kuwait War had just begun. The applicants were claimingthat British Airways had been negligent. In its discussion of the scope of Articles 17 and 24 of the Convention, the House of Lords madethe following comments, at page 207: The reference in the opening words of art 24(2) to ‘the cases covered by

Article 17’ does, of course, invite the question whether art 17was intended to cover only those cases for which the carrier is liable in damages under that article. The answer to that question mayindeed be said to lie at the heart of this case. In my opinion the answer to it is to be found not by an exact analysis of the particular wordsused but by a consideration of the whole purpose of the article. In its context the purpose seems to me to be to prescribe thecircumstances, that is to say, the only circumstances, in which a carrier will be liable in damages to the passenger for claims arising outof his international carriage by air. The phrase ‘the cases covered by

Article 17’ extends therefore to all claims made by the passenger against the carrier arising out ofinternational carriage by air, other than claims for damage to his registered baggage which must be dealt with under art 18 and claims fordelay which must be dealt with under art 19. The words ‘however founded’ which appear in art 24(1), and are applied to passenger’sclaims by art 24(2), support this approach. The intention seems to be to provide a secure regime, within which the restriction on thecarrier’s freedom of contract is to operate.

Benefits are given to the passenger in return, but only in clearly defined circumstances towhich the limits of liability set out by the convention are to apply. To permit exceptions, whereby a passenger could sue outwith theconvention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which theconvention did not create any liability on the part of the carrier.

Thus, the purpose is to ensure that, in all questions relating to thecarrier’s liability, it is the provisions of the convention 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 provision for the risk of being subjected to such remedies, because the whole matter is regulated bythe convention. [Emphasis added.] [73] The Supreme Court of the United States followed that case law in deciding the scope of the Convention in Tseng, above.

In thatcase, the Court ruled that a passenger could not institute an action in damages following a search to which he had been subjected in anairport because that claim did not meet the parameters of the Warsaw Convention. The U.S. Second Circuit Court of Appeal, in King v.American Airlines, Inc., 284 F.3d 352 (2002) (available on QL), for its part, interpreted the Convention as excluding all possibility of aremedy for discriminatory actions by the air carrier’s employees when they occurred during international carriage. In Carey v. UnitedAirlines, 255 F.3d 1044 (2001) (available on QL), the U.S.

Court of Appeals for the Ninth Circuit, ruled to the same effect regarding anaction in damages following an incident between a flight attendant and a passenger. [74] The Canadian case law has been developed mainly in the context of situations in which events giving rise to liability could havebeen considered under the Warsaw Convention or the Montréal Convention, but in which the types of damage claimed, among otherspain and suffering or psychological damage, were not compensable under the convention.

By and large, the case law holds that isexclusive the compensation scheme set out under the Warsaw Convention or the scheme provided for by the Montréal Convention; ittherefore excludes the exercise of all other remedies (Simard c. Air Canada, 2007 QCCS 4452; Chau v. Delta Air Lines Inc. (2003), (ON SC), 67 O.R. (3d) 108 (Sup. Ct.) (available on CanLII); Plourde v. Service aérien FBO inc. (Skyservice), 2007QCCA 739 (available on CanLII); Walton v. Mytravel Canada Holdings Inc., 2006 SKQB 231, 26 C.P.C. (6th) 253; ConnaughtLaboratories Ltd. v. British Airways (2002), (ON SC), 61 O.R. (3d) 204 (Sup.

Ct.)). [75] The liberal

interpretation given to the Warsaw and Montréal Conventions leads me to acknowledge the very broad ambit of theMontréal Convention, which comes into play once an incident or a situation occurs during international carriage and sets out, in a limitedway, the causes of action which may give rise to compensation and the compensable types of damage. [76] Since I feel bound by the case law, despite my reservations, I conclude therefore that there is a conflict between the MontréalConvention and the Court’s remedial power set out at subsection 77(4) of the OLA. [77] Moreover, it does not seem possible to me to reconcile the two instruments.

If I were to conclude that subsection 77(4) of theOLA excludes the award of damages when the violation occurs during an international flight, this would weaken the OLA considerably.I am also of the opinion that in interpreting the Montréal Convention as allowing compensation on the basis of a cause of action which isnot contemplated by the Convention, I would depart from the Canadian and international case law. [78] Having concluded that there is a conflict between the two instruments, I must now determine which, subsection 77(4) of theOLA or the Montréal Convention, must prevail.

In his doctrinal work, Professor Pierre-André Côté [9] comments as follows: Because the legislature is aware of the potential conflict, it sometimes adopts explicit rules establishing an order of priority betweendifferent enactments. … If the legislature has not expressly enacted a formal hierarchy, the only choice is to employ the usual rules of

interpretation to determinewhich laws have implicitly been given precedence. [79] In this case, two instruments of higher rank and two principles of

interpretation are at issue: the presumption of conformity withinternational law and the primacy of quasi-constitutional enactments.

[ 80 ] Professor Sullivan [10] describes these two principles as follows: Special status of human rights legislation . Since the Supreme Court of Canada’s decision in Insurance Corporation of British Columbia v. Heerspink , legislation enacted to protect human rights has been recognized as having a quasi-constitutional status. This has several implications.

(1) Human rights legislation is given a liberal and purposive

interpretation. Protected rights receive broad

interpretation, while exceptions and defenses are narrowly construed.

(2) In responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation are adapted not only to changing social conditions but also to evolving conceptions of human rights.

(3) In case of conflict or inconsistency with other types of legislation, the human rights legislation prevails regardless of which was enacted first. … Governing principle . Although international law is not binding on Canadian legislatures, it is presumed that legislation enacted both federally and provincially is meant to comply with international law generally and with Canada’s international law obligations in particular. … As these authorities indicate, there are two aspects to the presumption of compliance with international law.

First, the legislature is presumed to comply with the obligations owed by Canada as a signatory of international instruments and more generally as a member of the international community. In choosing among possible

interpretations, therefore, courts avoid an

interpretation that would put Canada in breach of its international obligations. Second, the legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, an

interpretation that reflects these values and principles is preferred. [Foonotes omitted.] [ 81 ] In this case, I am of the opinion that subsection 77(4) of the OLA must prevail over the Montréal Convention, on two main grounds. [ 82 ] First, I am of the view that, in specifying that the provisions of

Part IV (subsection 82(1) of the OLA ) prevail, Parliament implicitly gave precedence to the remedy provisions by means of which breaches of the duties set out in

Part IV of this statute may be enforced. I am of the opinion that there was no need for Parliament to expressly provide for the primacy of the remedy set out at subsection 77(1) because this flows from its incidental nature in respect of the rights it aims to enforce.

To rule otherwise would render meaningless the primacy given to the provisions listed at subsection 82(1) of the OLA. [ 83 ] Second, I am of the opinion that in giving precedence to subsection 77(4) of the OLA over the Montréal Convention, the Court is giving effect to the quasi-constitutional status of the OLA without violating Canada’s treaty obligations. Giving precedence to the OLA results in a displacement of the Montréal Convention but, in my opinion, this does not compromise Canada’s international obligations or undermine their integrity.

The OLA does not apply to any other carrier subject to the Montréal Convention. Furthermore, if Air Canada is subject to the OLA, that is not due to its activities as an international carrier, but its status as an “old” federal institution. Air Canada’s duties as to the official languages do not interest or concern any other signatory country of the Convention.

A departure from the Montréal Convention to ensure the efficacy of proceedings aimed at enforcing Air Canada’s duties as to the official languages has no effect on the other signatory countries of the Convention, and does not weaken the Convention or imperil the integrity of the uniform liability regime it enshrines. In this case, this is a very minor circumvention of the Montréal Convention that has no impact on the liability of the other carriers subject to the Convention or on Canada’s treaty obligations; thus, the remedy and penalties set out in the OLA receive their full effect. (

b) Amount of damages [ 84 ] The applicants are seeking $5 000 each for each violation of their language rights. They are thus seeking a total of $50 000. [ 85 ] Air Canada submits that the applicants did not suffer any compensable damage and should not be awarded damages. [ 86 ] In Ward , above, the Supreme Court confirmed that damages could be granted as a remedy under subsection 24(1) of the Charter and defined a test. The first step is to establish that a Charter right has been breached. It was in this case. The applicant must then show that damages are an appropriate and just remedy having regard to the following criteria,

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