MICHEL THIBODEAU Applicant v. GREATER TORONTO AIRPORTS AUTHORITY, 2024 FC 274

Date: 20240220 Dockets: T-2013-19 T-534-21 Citation: 2024 FC 274 [ENGLISH TRANSLATION] Ottawa, Ontario, February 20, 2024 PRESENT: The Honourable Mr. Justice Pamel BETWEEN: MICHEL THIBODEAU Applicant and GREATER TORONTO AIRPORTS AUTHORITY Respondent and COMMISSIONER OF OFFICIAL LANGUAGES Intervener JUDGMENT AND REASONS I. Overview [ 1 ] The Greater Toronto Airports Authority [GTAA] is a non-profit corporation that operates Toronto Pearson International Airport [the Airport], among other things.

The applicant, Michel Thibodeau, who is not represented by counsel, is applying for remedies under subsection 77(1) of the Official Languages Act , RSC 1985, c 31 (4th Supp ) [the OLA ], against the GTAA, alleging that it has failed to meet its language duties under the OLA and has therefore violated the language rights associated with those duties. The alleged violations are related to three complaints that he made to the Commissioner of Official Languages [the Commissioner] under

section 55 of the OLA , namely one complaint in docket T-534-21 and two complaints in docket T-2013-19, with both matters being heard in succession on the same day. The Commissioner prepared investigation reports and made recommendations in relation to each of the complaints. In addition, in an order dated November 26, 2020, the Commissioner was granted intervener status in docket T-2013-19 only. The Commissioner did not intend to take a position on the merits of Mr. Thibodeau’s application; rather, the Commissioner’s objective was to present to the Court the principles of

interpretation that apply to the Official Languages (Communications with and Services to the Public) Regulations , SOR/92-48 [the Regulations ], in order to clearly delineate the scope of third-party contractor services under subsection 12(1) of the Regulations and the scope of airport authorities’ duties. [ 2 ] Mr. Thibodeau is seeking remedies under subsection 77(4) of the OLA , namely, public interest standing, a public statement that the GTAA violated his language rights, and a formal letter of apology. He is also asking the Court to award him $4,500 in damages ($1,500 for each violation) and $5,000 in costs.

I will deal with both applications at the same time because a number of issues are common to both. For the reasons that follow, I will allow Mr. Thibodeau’s applications in part and grant remedies in this case. II. Complaints T-534-21—Press Release complaint [ 3 ] The facts in docket T-534-21 are not in dispute. The GTAA owns and operates the torontopearson.com website [the Website], and it has acknowledged that Mr.

Thibodeau’s language rights were violated in the case of the complaint regarding a press release entitled “Toronto Pearson to welcome 9.8M passengers this summer” [the Press Release] dated June 28, 2017, and posted the following day on the Website without being simultaneously posted in French, i.e., the Press Release was not available in both official languages. Mr.

Thibodeau’s complaint to the Commissioner on July 14, 2017 [the Press Release complaint], was communicated to the GTAA on July 18, 2017, and the GTAA corrected the situation and published the French version of the Press Release six days later, on July 24, 2017. [ 4 ] The Commissioner filed his final investigation report on June 11, 2018, finding that the Press Release complaint was well founded and that the GTAA had failed to meet its language duties under

Part IV of the OLA .

However, the Commissioner noted that the GTAA [ translation ] " “[had] made progress with regard to press releases being published in both official languages on the website” " and recommended that the GTAA review its communications policies within three months of the date of the final investigation report to ensure that press releases on the Website were available simultaneously in both official languages. [ 5 ] The final follow-up report, filed by the Commissioner on January 26, 2021, states that the GTAA responded to the recommendation by claiming, but not showing, that the delay in issuing the French-language Press Release was the result of exceptional circumstances rather than any lack of knowledge or understanding of its language duties, or any systemic problems in meeting those duties.

The GTAA stated that, normally, press releases for the public are issued simultaneously in both official languages, and the English and French versions of press releases are posted simultaneously on the Website. The GTAA acknowledged that it did not have written policies for everything it did; however, it asserted that it ensured that employees drafting and issuing press releases had the knowledge required to

carry out their day-to-day duties, that employees were aware that press releases had to be issued in both French and English, and that both French and English versions were required before a press release could be posted on the Website. [ 6 ] However, the Commissioner noted that the recommendation in his final investigation report had not been implemented and that the GTAA had failed to provide any documentation showing that it had reviewed its policies to ensure that communications to the public, including press releases, were posted simultaneously in both official languages on the Website.

Moreover, the Commissioner noted that the GTAA had no formal written policy on issuing communications to the public and that, although the GTAA had stated that its press releases were issued in both official languages and that the delay in issuing the press release referred to in the initial complaint was the result of exceptional circumstances, the documentation provided by Mr. Thibodeau combined with the Commissioner’s investigations showed that the problem was ongoing.

Consequently, the Commissioner asked the GTAA to act on the recommendation immediately, by adopting a communications policy and communicating it to communications staff.

The Commissioner believed that an official communication policy, if enforced, would enable the GTAA to prevent future incidents similar to the one described in the complaint. [ 7 ] As mentioned, the GTAA has acknowledged that, under the OLA , it must ensure that its airport-related press releases are available in both official languages, and it states that policies and procedures, particularly with regard to the translation of press releases, have been implemented to this end.

The GTAA submits before to me, as it had advised the Commissioner, that the issuance of the Press Release in English without the French version was merely an oversight—perhaps the result of exceptional circumstances, rather than a lack of knowledge or understanding of its language duties—and that the oversight was promptly corrected once brought to the GTAA’s attention. Since the GTAA has acknowledged that Mr. Thibodeau’s language rights were violated in the case of the Press Release complaint, the issue before me concerns the remedies that should be granted to Mr.

Thibodeau, in particular the nature of those remedies, including the quantum of any damages. [ 8 ] However, Mr. Thibodeau’s present application specifically seeks a declaration that the GTAA failed to meet its language duties under the OLA , thereby violating language rights not only in relation to the Press Release but also in relation to a number of press releases that were not available in French on the Toronto Pearson International Airport website in recent years. I note that the evidence in the record includes complaints made by Mr.

Thibodeau to the Commissioner in January 2021, after the present application had been filed, regarding other alleged violations of the OLA in relation to GTAA press releases to the public issued in 2017, 2018, 2019 and 2020. However, a number of these new complaints are still pending, with the Commissioner’s final investigation report still outstanding at the time of the hearing before me; in fact, the GTAA asserted before me that, apart from the complaints that form the basis of docket T-2013-19, it had only recently become aware of the new complaints of possible previous violations.

For the purposes of the present application and the declaratory relief by sought by Mr. Thibodeau, it does not seem appropriate for me to consider the purported previous violations of the OLA that are still under investigation. The GTAA does not, in fact, object to any declaration by the Court of violations in respect of the Press Release complaint, but it does object to any general declaration in respect of purported previous violations, given that no such violations are at issue before me. [ 9 ] That said, the GTAA submits that Mr.

Thibodeau is not entitled to damages because they would be neither fair nor appropriate, particularly since Mr. Thibodeau failed to demonstrate that the alleged violations of his language rights resulted in any actual harm, and that the complaint is simply part of Mr. Thibodeau’s longstanding crusade against federal institutions, in which he actively seeks out potential language violations for personal gain. I will consider these issues below.

T-2013-19—CIBC and Booster Juice complaints [ 10 ] The two complaints in docket T-2013-19 relate to the GTAA’s duties with regard to services provided by third-party contractors, under subsection 12(1) of the Regulations . A. The CIBC complaint [ 11 ] The incident in question reportedly occurred on February 3, 2018, and Mr. Thibodeau’s complaint to the Commissioner against the Airport is dated March 3, 2018. Mr.

Thibodeau’s complaint with respect to CIBC [the CIBC complaint] regards unilingual English or predominantly English signage on CIBC’s automated teller machines [ATMs] and in CIBC’s advertising at the Airport. Specifically, the CIBC complaint is composed of three parts:

a) ATM signage—Signage is only in English or predominantly in English—the photographs provided by Mr. Thibodeau show signs on ATMs such as “Foreign Cash”, “CAD and USD Cash” and “Multiple Currencies available here” with no French equivalents.

b) Branch advertising—Signage at CIBC banking centres is only in English or predominantly in English, for example, “How can we help you?” signs and taglines in big letters, advertisements and taglines such as “We’re here for all your banking needs”, and posters bearing the taglines “Bank before you fly”, “Do any last minute banking”, “Branch on your right” and “Relax and recharge in our branch” with no French equivalents.

c) Travel insurance advertising—Signage for CIBC travel insurance is only in English or predominantly in English, for example, “Purchase travel insurance” with no French equivalent. [ 12 ] The Commissioner filed his final investigation report in October 2019; he determined that the CIBC branches located at the airport provided services to the travelling public pursuant to a contract within the meaning of paragraph 12(1) (

a) of the Regulations , including travel insurance and foreign exchange services, and that the ATM signage and CIBC advertisements complained of were in English only. Consequently, the GTAA had violated

Part IV of the OLA , and Mr. Thibodeau’s complaint was well founded. The Commissioner noted that these services, as well as ATM signage, must be provided or made available to the travelling public in both official languages, in accordance with subsection 23(2) of the OLA , and that advertisements and other signage related to these services must also be in both official languages, in accordance with subsection 12(3) of the Regulations . [ 13 ] In response to the preliminary investigation report, the GTAA stated that it was advising CIBC to ensure that signage and print and

electronic advertising for the services covered by the Regulations are in both official languages, and that it was currently in discussions with CIBC about changes to the sale and purchase of currency where in-person service is offered in English only. Although CIBC’s ATMs at the airport are accessible in both English and French, the GTAA confirmed that the signage on some ATMs was in English only, and that these ATMs would be updated this year with bilingual signage.

However, regarding the sale of travel insurance by CIBC, the GTAA simply noted that, since this service was not provided in person at airport branches, customers had to contact CIBC by telephone to purchase insurance. As a result, English-speaking and French-speaking customers are treated equally, as they must all access the service by telephone; the telephone service is bilingual. [ 14 ] The Commissioner commended the GTAA for its efforts in ensuring that signage and advertising at CIBC branches located at the airport were in both official languages.

However, it recommended that the GTAA take the necessary steps within six months of the date of the final investigation report to ensure that this signage and these advertisements, as well as those on the ATMs, are of equal quality in both official languages. [ 15 ] The GTAA argues before me that, in the present case, it concedes that there were two specific instances in which Mr. Thibodeau’s language rights were violated, namely the ATM signage and the advertising related to the sale of travel insurance.

In both cases, however, the GTAA claims to have acted promptly to ensure that CIBC made the necessary corrections. [ 16 ] As for the rest, these are not violations of the OLA . The GTAA asserts that the general branch advertisements all relate to traditional banking services, rather than to one of the services prescribed in subsection 12(1) of the Regulations ; general banking services are not services covered by the Regulations and are therefore not subject to bilingualism requirements.

According to the GTAA, there is nothing in the OLA or the Regulations to support the fact that advertising or communications relating to banking services or products that are not designated as services prescribed by regulation are subject to bilingualism obligations. According to the GTAA, Mr. Thibodeau claims that, since CIBC offers certain services covered by the Regulations (ATMs, foreign exchange services and travel insurance), all its services—including banking services—are services prescribed by regulation.

Such reasoning, argues the GTAA, is not consistent with the Regulations , and only those services that Parliament expressly lists as falling within the scope of a federal institution’s language obligations should give rise to such obligations. [ 17 ] In any event, the GTAA reiterates that Mr. Thibodeau is not entitled to damages, as they are neither just nor appropriate, especially since, as was the case with the complaint regarding the press release, Mr. Thibodeau has failed to demonstrate that the alleged violations of his language rights have resulted in actual harm.

This is also because the complaints are part of Mr. Thibodeau’s longstanding crusade against federal institutions, in particular airport authorities, whereby he actively seeks out potential violations of his language rights for personal financial gain. B. The Booster Juice complaint [ 18 ] The incident in question reportedly occurred on January 26, 2019, and Mr. Thibodeau’s complaint to the Commissioner against the airport is dated February 8, 2019.

The Booster Juice restaurant (a juice and smoothie bar) is a third-party service provider of the GTAA that operates, at one of its counters located at the airport, a play area adjacent to the Booster Juice counter, which offers an interactive experience for young travellers. The Booster Juice complaint was with respect to a unilingual English sign located at the entrance to the play area, which read “Toronto Pearson Booster Juice FIT & FUN ZONE” [the Booster Juice complaint]. [ 19 ] Before examining the issue of the Booster Juice complaint, I must point out that

section 77 of the OLA grants the Court only limited jurisdiction over the complaint filed with the Commissioner by Mr. Thibodeau. In this case, the complaint filed by Mr. Thibodeau and dealt with by the Commissioner concerns only a specific inscription, namely the sign at the entrance to the play area. Mr.

Thibodeau maintains before me that inside the play area, there are two tables with built-in electronic screens, larger free-standing screens on which video games are broadcast in English only, and two screens mounted on the wall. “Toronto Pearson Booster Juice FIT & FUN ZONE” can be seen on the side of one table and on the wall-mounted screens. In addition, a large neon sign reading “BOOST YOUR LIFE” can be found on a wall in the play area. No French equivalent was posted on either sign. However, these signs were not part of Mr.

Thibodeau’s complaint to the Commissioner and, as such, I cannot deal with them. [ 20 ] The Commissioner filed his investigation report in December 2019, confirming that Mr. Thibodeau’s complaint was founded and that GTAA had failed to comply with

Part IV of the OLA . In response to the Commissioner’s preliminary investigation report, the GTAA explained that the play area is not used as a restaurant, and that it is not part of a restaurant under subsection 23(2) of the OLA and paragraph 12(1) (

a) of the Regulations but is, rather, a play area. However, it appears that Booster Juice has nonetheless made changes to the play area, notably by adding signs in French. The Commissioner disagreed with the GTAA and concluded that paragraph 12(1) (

a) of the Regulations states that services offered by restaurants are part of the contracted services that must be provided to the travelling public in both official languages. Since Booster Juice provides restaurant services under a contract with the GTAA, and since the play area is part of the Booster Juice counter in question, its signs are covered by subsection 12(2) of the Regulations and must be readily visible in both English and French.

Recommendations, remedial measures and timelines were articulated by the Commissioner, which included recommendations that the GTAA take all necessary measures to ensure that Booster Juice signage at the airport is of equal quality in both official languages, and to remind airport service providers that all signage and written communications concerning services to the travelling public listed in subsection 12(1) of the Regulations must be of equal quality in both official languages. [ 21 ] As in the case of the CIBC complaint, the GTAA asserts before me that the Booster Juice complaint is unfounded in law and should be dismissed.

Indeed, the dispute between the parties centres primarily on the

interpretation that should be given to the case law on the language rights of the travelling public and to the OLA , but in particular to the types of services provided by third-party contractors pursuant to subsection 12(1) of the Regulations . This

interpretation, combined with an understanding of the main jurisprudential principles governing language rights, will together serve to confirm whether the GTAA breached its duties in relation to the scope of its obligations which devolve to third-party contractors operating a business in its airport. [ 22 ] The central questions to be decided in T-2013-19 are as follows:

a) How are we to interpret subsection 12(1) of the Regulations in light of the main jurisprudential and legislative principles

regarding language rights in order to give effect to the Regulations? b)Does the evidence relating to the challenged complaints reveal a breach of the GTAA’s language obligations with respect to theprovision of services by third- party contractors at Pearson International Airport under the OLA and

section 12 of its Regulations?In particular, what

interpretation should be given to the notion of “services”, as detailed in

section 12 of the Regulations? c)What remedy, if any, is appropriate? III. Analysis [23] The laws, regulations and other statutory instruments relevant to this case have been reproduced in the Annex. I note that the Court’srole is to carry out a de novo revue of Mr. Thibodeau’s application. The case law is clear: I am not bound by the findings orrecommendations of the Commissioner’s reports. They are simply admissible evidence that may be challenged like any other evidenceon the record (Thibodeau v Air Canada, 2005 FC 1156, [2006] 2 FCR 70 at para 62). A. The OLA—Principles of

interpretation applicable to language rights [24] It is not disputed that the relevant provisions of the OLA and the Regulations apply to the GTAA. Moreover, the parties agree thatthe OLA enjoys a special status in the Canadian legal framework, and the case law has long recognized its quasi-constitutional status(Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 [Lavigne] at para 23; Thibodeau v Air Canada,2014 SCC 67 [Thibodeau 2014] at para 12). This special status stems from its "“constitutional roots”" and "“its crucial role in relation tobilingualism”" (Lavigne at para 23).

Indeed, the principles contained in the provisions of the OLA—with the exception of those in PartV—stem directly from sections 16 to 20 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter]. Thus, the provisions of the OLA take precedence over all otherfederal statutory or regulatory provisions, with the exception of those of the Canadian Human Rights Act, RSC 1985, c H-6. [25] It is also important to remember the purpose of the OLA, set out in

section 2, which at the relevant time read as follows: (

a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rightsand privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, inlegislative and other instruments, in the administration of justice, in communicating with or providing services to the publicand in carrying out the work of federal institutions; (

b) support the development of English and French linguistic minority communities and generally advance the equality ofstatus and use of the English and French languages within Canadian society; and (

c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada. [Emphasis added.] [26] The OLA, by virtue of its

preamble, is an extension of the rights and guarantees recognized in the Charter and belongs to thatprivileged category of quasi-constitutional legislation which reflects "“certain basic goals of our society”" and must be so interpreted"“as to advance the broad policy considerations underlying it”" (Doucet v Canada, 2004 FC 1444 at para 16, citing Canada (AttorneyGeneral) v Viola, (FCA), [1991] 1 FC 373 (CA) [Viola] at page 386). [27] Subsections 23(1) and (2) of the OLA deal with the duty of federal institutions that provide services or make them available to thetravelling public.

These institutions must "“ensure that any member of the travelling public can communicate with and obtain thoseservices in either official language from any office or facility of the institution in Canada or elsewhere where there is significant demandfor those services in that language”". Subsection 23(2) also specifies the duties of these federal institutions in relation to services to thetravelling public prescribed by regulation that are provided or made available by another person or organization pursuant to a contract. [28]

Section 25 of the OLA specifies the obligations related to services provided by third parties. It reads as follows: Every federal institution has the duty to ensure that, where services are provided or made available by another person ororganization on its behalf, any member of the public in Canada or elsewhere can communicate with and obtain those servicesfrom 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. [29] The guiding principles governing the

interpretation of the language rights in Canada—and therefore, by extension, the OLA—derivefrom the case law of the Supreme Court since the end of the 20th century. This implies that the Court is bound to interpret languagerights according to the purposive approach, that is, an analysis that is based on the rights’ purpose (R v Beaulac, (SCC),[1999] 1 SCR 768 [Beaulac] at para 25), and that requires giving Charter rights a generous and liberal

interpretation to fully realize thepurpose of the OLA, thereby advancing, in all cases, the preservation and development of official language minorities in Canada(Beaulac at paras 22–25; DesRochers v Canada (Industry), 2009 SCC 8, [2009] 1 SCR 194 [DesRochers] at para 31; Association desparents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 21 at para 32; Mazraani v Industrial Alliance Insuranceand Financial Services Inc, 2018 SCC 50 at para 20; R v Poulin, 2019 SCC 47 [Poulin] at para 53; Conseil scolaire francophone de laColombie-Britannique v British Columbia, 2020 SCC 13 at paras 239–40).

This interpretive principle is based on the constitutionalprinciple of the protection of minorities, and it illustrates the need to correct societal inequalities by mitigating the vulnerability ofminority cultures and ensuring that members of the minority groups and majority groups have equal opportunities (Thibodeau v Canada(Senate), 2019 FC 1474 [Senate] at para 27, citing Reference re Secession of Quebec, (SCC), [1998] 2 SCR 217 atparas 79-82). Thus, I must reject any strict or restrictive

interpretation, considering the importance of language rights in Canadian society(Beaulac at paras 2 and 25).

[ 30 ] Moreover, for its

interpretation to be consistent with the objectives of the OLA , substantive equality, as opposed to formal equality —which will require a comparison between the services offered to the linguistic majority community and those offered to the linguistic minority community—is to be the norm, and the exercise of language rights is not to be considered a request for accommodation ( DesRochers at para 31 ); the components of substantive equality are the equality of status and use of English and French, which stems directly from

section 2 of the OLA and

section 16 of the Charter , and the equality of access to services of equal quality for members of both official language communities in Canada ( Beaulac at para 22 ; Thibodeau v Air Canada , 2019 FC 1102 [ Air Canada 2019 ] at para 40 ). Finally, the principle of a liberal and purposive

interpretation of the OLA " “translates into a residual presumption: if the application of the usual methods does not allow one to decide between two possible

interpretations of the Act, one must choose the

interpretation that maximizes the scope of language rights. A similar presumption applies to the Charter . . . . Since the Act is intended to give effect to certain Charter rights, it is logical that the same presumption should apply” " [citation omitted] ( Thibodeau v St. John’s International Airport Authority , 2022 FC 563 [under appeal] [ St. John’s Airport ] at para 23 ). [ 31 ] That said, and although the

interpretation of the OLA , like that of the Charter , is liberal and generous, the purposive approach should not be confused with liberal

interpretation; as the Supreme Court stated in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] : While the twin principles of purposive and generous

interpretation are related and sometimes conflated, they are not the same . The purpose of a right must always be the dominant concern in its

interpretation; generosity of

interpretation is subordinate to and constrained by that purpose . While a narrow approach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes . In brief, we must construe the language [of the sections of the statute] in a generous way that furthers, without overshooting, its purpose . [References and citations omitted.] ( Grant at para 17 ; Poulin at paras 53-55 .) [ 32 ] Moreover, while language rights are to be given a liberal

interpretation within the outer bounds of the purpose of the applicable law, the words used remain important and, within the purposive approach, the analysis must begin by considering the text of the provision and " “must not overshoot (or, for that matter, undershoot) the actual purpose of the right” " ( Quebec (Attorney General) v 9147-0732 Quebec inc ., 2020 SCC 32 , [2020] 3 SCR 426 [ 9147-0732 Quebec inc. ] at para 8).

While constitutional norms are deliberately expressed in general terms, the words used remain the most primal constraint on judicial review and form the outer bounds of a purposive inquiry ( 9147-0732 Québec inc . at paras 8–10 ; Poulin at paras 53–55 ; Caron v Alberta , 2015 SCC 56 , [2015] 3 SCR 511 [ Caron ] at para 36 ). Indeed, the Commissioner accepts that the purposive

interpretation does not exclude the principles of statutory

interpretation under the usual approach, which requires consideration of the text, the entire context, the scheme of the Act, and Parliament’s purpose ( Thibodeau 2014 at para 112; St. John’s Airport at para 23). [ 33 ] Finally, the Commissioner adds, because of the fragility of official language minority communities, the Supreme Court has recognized the remedial character of language rights. 1.

The Official Languages (Communications with and Services to the Public) Regulations [ 34 ] The main issue in this case is whether the GTAA has complied with its language obligations under the Regulations with respect to the provision of services by third-party contractors operating a business at the airport. Before turning to the legislative

interpretation of the Regulations , it is important to understand the impetus behind them. When the OLA was enacted in 1988, the Governor in Council was given the task of specifying the conditions necessary to implement the rights set out in

Part IV of the OLA and

section 20 of the Charter . This study was carried out by the Standing Joint Committee of the Senate and House of Commons on Official Languages through an extensive consultation process with various stakeholders, resulting in the adoption of the Regulations , which officially came into force in 1992. [ 35 ] In this case, the Regulations implement subsection 20(1) of the Charter and certain key sections of

Part IV of the OLA , which relate to communications with and services to the public. In particular, subsection 12(1) of the Regulations specifies which services provided pursuant to a contract are covered by the duty, set out in subsection 23(2) of the OLA , to provide services to the travelling public in both official languages: these include in paragraph 12(1) (a) “restaurant, cafeteria . . . services ” , which is what the Booster Juice complaint is concerned with, and in paragraph 12(1) (b) “self-service equipment, including automated banking machines ” , as in the CIBC complaint.

The Regulations have made it possible to standardize the rules and criteria applicable to the scope of the language obligations of federal institutions, in particular by defining what constitutes “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 ” , referred to in subsection 23(2) of the OLA , while also setting out how the Regulations are to be applied. [ 36 ] Thus, the question is, how are we to interpret the Regulations , since they derive from a quasi-constitutional statute?

Although Mr. Thibodeau does not specifically address the question of the interpretative principles of law that apply to

section 12 of the Regulations , the Commissioner argues that, given the quasi-constitutional nature of the OLA and the rights guaranteed under it, the Regulations must be interpreted in the same way as the OLA ; therefore, it is essential that the Court adopt a purposive approach in interpreting the Regulations , as required by Beaulac , as well as a liberal and generous

interpretation, based on the purpose which underlies the entire federal language regime, in order to guarantee the respect and implementation of the language rights of the travelling public. Thus, in response to the issues raised by the parties, the Commissioner states that the Court must interpret subsections 12(1) and (2) of the Regulations and give them a scope that takes into account the nature and purpose of the language rights conferred on the travelling public under

Part IV of the OLA , as well as the principle of substantive equality. A broad and liberal

interpretation, the Commissioner asserts, is justified by the particular nature and purpose of the Regulations , which favour the implementation of quasi-constitutional rights as much as the OLA itself, as well as by the special process for enacting the Regulations and the link between subsection 23(2) of the OLA and

section 12 of the Regulations . The Regulations are not made according to a typical enactment process, as the specific steps to be followed in making them are established by the OLA (see sections 84 to 88 of the OLA ) and include a consultation process with linguistic minorities to ensure that the Regulations are consistent with the objectives of the OLA ; in the Commissioner’s view, subsection 23(2) of the OLA cannot be dissociated from the regulatory provision of the OLA set out in

section 12 of the Regulations to ensure a harmonious

interpretation of the two provisions, which must be read together.

[ 37 ] For my part, we must answer the question starting with first principles; as a general rule, the approach to statutory

interpretation must be followed, with necessary adaptations, in interpreting regulations ( Glykis v Hydro-Québec , 2004 SCC 60 , [2004] 3 SCR 285 [ Glykis ] at para 5 ). In addition, in this case, the OLA and its regulations and policies together form a comprehensive statutory regime that governs the application and implementation of language rights within federal institutions; if the purpose of the OLA is to clarify and develop constitutional rights, its Regulations must be recognized as a key instrument for applying the fundamental values expressed in the OLA and the Charter .

As the Regulatory Impact Analysis Statement [Regulatory Impact Analysis Statement] published with the Regulations makes clear, the Regulations implement certain key sections of

Part IV of the OLA , which relate to communications with and services to the public; it is therefore impossible to dissociate the purpose of the Regulations from the purpose of

Part IV of the OLA . Certain regulations, such as the ones at issue here, give a concrete scope to the rights and guarantees that have their source in the Charter ; it would therefore be logical for the

interpretation of the Regulations to be guided by the same principles applicable to so-called quasi- constitutional statutes, which the Regulations are intended to implement. Indeed, as Justice Martineau stated in Norton v Via Rail Canada , 2009 FC 704 at para 98 , the OLA ’s regulations " “must always be interpreted and applied in a manner consistent with the general objectives of the

preamble of the OLA and a recognition of the fundamental values of the Charter and Canadian policy in the matter of bilingualism” " . [ 38 ] In this case, I see no reason to depart from the general principle of

interpretation of regulations set out in Glykis when the statute in question is quasi-constitutional in nature. I am satisfied that, if the purpose of the OLA is to clarify and develop constitutional rights, its Regulations must be recognized as a key instrument for implementing the fundamental values expressed in the OLA and the Charter . The purpose of the Regulations is to clarify the scope of the language obligations set out in

Part IV of the OLA . Thus, while the Court must refrain from questioning the political choices of Parliament in drafting the wording of the Regulations , it seems clear to me that the Regulations must nevertheless be interpreted according to the rules applicable to its quasi-constitutional enabling legislation, and that the

interpretation of the wording of the Regulations must in no way limit or restrict the scope of its enabling legislation. Such an

interpretation is the only way to ensure that the objectives of the OLA in relation to the travelling public are fully realized. Without qualifying the Regulations as quasi-constitutional, I am of the opinion that the principles of

interpretation applicable to the OLA also apply to its Regulations . Since the OLA is a quasi-constitutional statute, its Regulations must therefore be interpreted using a purposive approach including the same broad and liberal

interpretation applicable to language rights. It must be borne in mind that the Supreme Court in Beaulac clearly stated that a broad and liberal

interpretation of Charter rights must be applied at all times, thereby fully achieving the purpose of the OLA , which is to advance, in all cases, the preservation and development of official language minorities in Canada ( Beaulac at paras 22–25 ). [ 39 ] The GTAA does not directly question the principle that the Regulations must be interpreted in the same way as the OLA , but stresses that the primacy of the text of the Regulations is more important than for other quasi-constitutional legislative instruments, given the detailed and complete list of services provided for in subsection 12(1) of the Regulations . In the GTAA’s view, despite the rule in favour of a broad and liberal

interpretation of language rights, the text of subsection 23(2) of the OLA and subsection 12(1) of the Regulations limits their scope in that it restricts bilingualism requirements to the manner set out in the Regulations , with the emphasis on the notion of “service”. Consequently, a measured approach to the

interpretation of the obligation imposed on the GTAA and the burden placed on third-party service providers is required. For his part, the Commissioner asserts that the words of

section 12 of the Regulations are not as detailed as the GTAA suggests, and that, even if one were to examine the text of the Regulations , a strict, cautious or restrictive

interpretation of language rights no longer has a place in Canadian law. [ 40 ] As I have already pointed out, words matter and have meaning, and the policy choices of Parliament must be respected; the text of subsection 23(2) of the OLA and subsection 12(1) of the Regulations limits the scope of these provisions in that it restricts bilingualism requirements to what is provided for in the Regulations .

To a certain extent, the GTAA is right in saying that the very text of subsection 23(2) of the OLA and subsection 12(1) of the Regulations illustrates a restrictive approach to the promotion of the travelling public’s language rights. Unlike the situation in St.

John’s Airport , in this case, Parliament has chosen which services to the travelling public that are provided or made available by a third party or organization pursuant to a contract with the federal institution for the provision of those services must necessarily be provided or made available in both official languages; the fact that a choice of services prescribed by regulation has been made implies restrictions.

However, the issue here is not the restrictive nature of the choices made, but rather the manner—restrictive or expansive—in which we must interpret the services that have been chosen and that appear on the list in subsection 12(1) of the Regulations . [ 41 ] Mr. Thibodeau maintains that the principles of the OLA require that all signage, services and amenities offered at airports be bilingual.

I cannot agree with this proposition; while this is the case for services provided to the travelling public directly by the GTAA (subsection 23(1) of the OLA ), the OLA has established a specific legislative framework for third-party contractors, which specifies which services prescribed by regulation must be provided or made available to the travelling public in both official languages ( subsection 23(2) of the OLA ). Crucial to the

interpretation of this provision is the fact that subsection 23(2) of the OLA is entirely dependent on the identification of services set out in

section 12 of the Regulations . As such, Parliament—in specifying the services prescribed by regulation provided pursuant to a contract covered by subsection 12(1) of the Regulations—chose to designate certain specific service sectors as being protected by the federal government for the travelling public; while the OLA must be interpreted broadly and liberally following a purposive approach, the analysis must begin with an examination of the text of the provision. As I mentioned earlier, the words used remain the principal constraint on judicial assessment and form the outer bounds of a purposive inquiry. In short, the

interpretation must still flow reasonably from the text. As stated by Justice Cromwell and Justice Karakatsanis in Caron at paragraph 38 , " “[t]he Court must generously interpret constitutional linguistic rights, not create them” " . 2. The

interpretation of

section 12 of the Regulations [ 42 ]

Section 23 of the OLA reads as follows: " Communications with and Services to the Public " " Communications avec le public et prestation des services " " Travelling public " " Voyageurs "

" 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. " " 23

(1) Il est entendu qu’il incombe aux institutions fédérales offrant des services aux voyageurs de veiller à ce que ceux-ci puissent, dans l’une ou l’autre des langues officielles, communiquer avec leurs bureaux et en recevoir les services, là où, au Canada comme à l’étranger, l’emploi de cette langue fait l’objet d’une demande importante. " " Services provided pursuant to a contract " " Services conventionnés " "

(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. " "

(2) Il incombe aux institutions fédérales de veiller à ce que, dans les bureaux visés au paragraphe (1), les services réglementaires offerts aux voyageurs par des tiers conventionnés par elles à cette fin le soient, dans les deux langues officielles, selon les modalités réglementaires. " " [Emphasis added.] " " [Non souligné dans l’original.] " [ 43 ]

Section 12 of the Regulations reads as follows:

PART III

PARTIE III Contract for Services to the Travelling Public Services conventionnés 12 (1) For the purposes of subsection 23(2) of the Act, services to the travelling public are the following : 12

(1) Les services visés au paragraphe 23(2) de la Loi offerts aux voyageurs sont les suivants : (

a) restaurant, cafeteria, car rental, travel insurance, ground transportation dispatch, foreign exchange, duty free shop and hotel services ;

a) les services offerts par les restaurants, les cafétérias, les agences de location de voitures, les bureaux de change et les boutiques hors taxes, la vente d’assurance-voyage, la répartition du transport terrestre et les services hôteliers ; (

b) self-service equipment, including automated banking machines and vending machines, and the provision of instructions for the use of public telephones and electronic games; and

b) les appareils libre-service, notamment les guichets bancaires automatiques et les distributeurs automatiques, et la communication des instructions d’utilisation des téléphones publics et des jeux électroniques ; (

c) passenger screening and boarding services, public announcements and the provision of other information to the public, and carrier services, including counter services for tickets and check-in but excluding carrier services in respect of buses provided at railway stations or ferry terminals .

c) le contrôle et l’embarquement des passagers, la communication d’annonces et d’autres renseignements au public et les services fournis par les transporteurs, lesquels comprennent les services au comptoir de billetterie et d’enregistrement mais non le service d’autobus offert par les transporteurs aux gares ferroviaires ou de traversiers .

(2) Where a service referred to in subsection (1) is provided by means of printed or pre-recorded material, such as signs, notices and menus, car rental contracts and travel insurance policies for the travelling public, the material shall be provided in both official languages .

(2) Si la prestation des services visés au paragraphe (1) comporte l’utilisation d’une documentation imprimée ou enregistrée, notamment des panneaux indicateurs, avis, menus, polices d’assurance-voyage et contrats de location de voiture à l’intention des voyageurs, cette documentation doit être dans les deux langues officielles .

(3) Where a service referred to in subsection (1) is provided by means other than those referred to in subsection (2), the service shall be offered to the travelling public by such means as will enable any member of that public to obtain those services in the official language of his or her choice .

(3) Si un moyen autre que la documentation mentionnée au paragraphe (2) est utilisé aux fins de la prestation des services visés au paragraphe (1), ce moyen doit permettre à chaque voyageur d’obtenir ces services dans la langue officielle de son choix . [Emphasis added.] [Non souligné dans l’original.] [ 44 ] Subsection 12(1) of the Regulations lists the services that are referred to in subsection 23(2) of the OLA , namely the services to the travelling public that must be provided or made available in both official languages where there is significant demand. The first issue is the importance of the concept of “travelling public” in interpreting

section 12 of the Regulations . The Commissioner notes that while

section 22 of the OLA establishes the general framework of the obligations assigned to the federal institutions, subsection 23(1) of the OLA specifies the target public of certain institutions, namely those that offer services to the “travelling public”, where there is significant demand according to the criteria specifically set out in

section 7 of the Regulations . Indeed,

section 23 of the OLA lists the language obligations of these federal institutions by linking them to the specific identity of the public they serve. According to the GTAA, the Commissioner’s argument is that determining whether a service is referred to must be evaluated from the perspective of the travelling public, but that such a subjective approach, which relies on public perception or belief, does not take into consideration the text and purpose of these provisions. However, this is not exactly what the Commissioner submits.

As indicated above, the Commissioner instead argues that when interpreting subsections 12(1) and (2) of the Regulations , the Court must give them a scope that takes into consideration the nature and the purpose of the language rights conferred on the travelling public under

Part IV of the OLA . [ 45 ] I agree. In my opinion, it is clear that subsection 23(2) of the OLA imposes an obligation on the GTAA—because there is a significant demand—for the prescribed services offered by third party contractors to be offered in both official languages, and this obligation is dependent on the presence of certain services, the nature of which is closely tied to the needs and reality of the travelling public.

The OLA does not provide any clues that would allow for the type of prescribed services offered by third party contractors to be defined, other than suggesting that their nature is closely tied to the needs and reality of the travelling public. This can be seen in the choice of services to be protected.

Subsection 12(1) of the Regulations includes restaurant, hotel, travel insurance, and car rental services, all undoubtedly essential services for the travelling public and considered to be federal services for which the Regulations were designed, according to the Regulatory Impact Analysis Statement, in order to provide fair and reasonable access to all Canadians in the official language of their choice.

Even more significant is that subsection 12(1) of the Regulations does not include certain services that are often found in airports today, such as spas, clothing and magazine shops, shoeshine services, massage stands, high-tech gadget stores, convenience stores and, of course, banking services. It seems that a conscious choice was made with regard to the services that are closely tied to the needs and reality of the travelling public. B. Interpreting the concept of service [ 46 ] This leads us to the concept of “service”.

The GTAA and the Commissioner agree that it is the type of service and not the type of business operated by the third-party contractors that triggers the application of the various obligations set out in subsections 12(2) and (3) of the Regulations .

I agree, so t he issue then becomes establishing how to interpret the concept of service in a manner that allows for the purpose of subsection 23(2) of the OLA to be fully achieved. [ 47 ] The Commissioner argues that as soon as a service referred to in a complaint is a component of a prescribed service, and therefore an integral part of it, on the basis of an analysis of objective indicators of the nature, function and proximity of that service, in relation to the service referred to in

section 12 of the Regulations , the service referred to in the complaint must be offered in both official languages. It follows that if, further to such an analysis, we note that the service referred to in a complaint is distinct from the prescribed service, such an obligation does not exist. [ 48 ] On the other hand, the GTAA submits that the Commissioner is asking the Court to make the provision say more than what it is saying and to add elements to the list of prescribed services. According to the GTAA, Parliament has clearly determined an exhaustive list of services.

According to the GTAA, the provision tells an airport authority that, when it enters into contracts with businesses that provide prescribed services, only the activities that are necessary, essential and directly related to the provision of the prescribed services under subsection 12(1) —for example, the elements or steps strictly necessary to provide restaurant service are limited to the host or hostess who greets clients at the door, the server who serves the clients, the menus and the sale of food and drink—must be provided in both official languages, and any components or facilities offered by a third party that are not directly required to provide the prescribed

service listed in subsection 12(1) of the Regulations are not covered by that provision. As a result, the third-party contractors would not be required to issue written or visual communications in both official languages unless they were specifically related to one of the services listed in

section 12 of the Regulations . [ 49 ] In my opinion, the difficulty lies in the fact that restaurants, for example, are constantly changing the way they offer their services, even expanding their service offerings beyond the sale of food and drink.

How would related services or components of the service such as coat checks, seating areas where clients are entertained while they wait for a table to become available, recycling bins, the sale of merchandise and other branded promotional items (such as those at the Hard Rock Café ), children’s play areas (such as the modular play structures often seen in McDonald’s restaurants), valet services or even the washrooms inside the premises and operated by the restaurant (as opposed to the washrooms located outside the restaurants, which are operated by the GTAA and treated separately under the OLA and the Regulations)?

Should these services not be included in the concept of prescribed restaurant service? The GTAA went so far as to submit that, subject to regulations, if Booster Juice decided to open a passenger lounge similar to Air Canada’s and offer its juices and food to the travelling public in both official languages, it would not be necessary for the washrooms in the lounges to have bilingual signage. [ 50 ] According to the GTAA, nothing in the OLA or the Regulations would permit going beyond the words chosen by the Governor in Council.

That would mean that any component of a restaurant’s offer of services beyond the steps or elements strictly necessary for the sale of food and drink would not be subject to the obligation to be offered in both official languages.

However, related services, such as washrooms and recycling bins, could be offered in the language of the majority only. [ 51 ] According to the Commissioner, the GTAA is advocating for a restrictive approach to commercial activities that would be included in the prescribed services and, with the GTAA’s proposed approach, the related or associated services aimed at improving the clients’ experience would not be subject to the official languages requirement. The Commissioner submits that relying on a literal and restrictive

interpretation would lead to a hermetic, or even compartmentalized, definition of services provided by third-party contractors, and limiting the application of subsections 12(1) and (2) of the Regulations to the terms based on their wording would prevent the full achievement of the objective under subsection 23(2) of the OLA . Instead, a process must be established to determine what the terms used in subsection 12(1) of the Regulations include. [ 52 ] I agree with the Commissioner. Limiting our understanding of subsection 23(2) of the OLA and

section 12 of the Regulations to the simplest expression of the concept of service would be inconsistent with the purposive approach, according to which language rights are to be interpreted in relation to the purpose of the OLA , and would be diametrically opposed to the need for a broad and liberal

interpretation, as the Supreme Court asks. Moreover, this approach does not take into consideration the development of technology and improvements to the ways in which the prescribed services are offered to the travelling public. Today, the concept of services includes multiple dimensions and components and, to avoid the fragmentation of language rights into categories of services clearly designated as essential for the travelling public, it is imperative to adopt a broader vision of services than that proposed by the GTAA, but without, as the Supreme Court cautioned in Caron , creating new rights.

It seems to me that splitting up the elements of the prescribed service offering would impede the concrete implementation of the travelling public’s language rights and would go against the key principles required to interpret the OLA , in particular, the principle of substantive equality, according to which members of the travelling public who belong to the linguistic minority should not have compartmentalized or fragmented access to services provided pursuant to a contract. [ 53 ] As a result, with regard to the service referred to in the complaint, I agree with the Commissioner’s position.

The analysis must be done with regard to the nature, function and proximity of the service referred to in the complaint to better distinguish whether it is a component or integral and functional part of the service prescribed under subsection 12(1) of the Regulations .

With regard to printed material under subsection 12(2) of the Regulations , we must focus on the type of message being sent to the travelling public and determine whether this message informs the travelling public of a specific service or the full range of services offered by a third-party contractor and whether, in this range of services, there are some that are listed in subsection 12(1) of the Regulations .

Otherwise, in my opinion, it would be too easy for a third-party contractor that offers a multitude of services, only a few of which are prescribed services, to bypass the OLA language requirements with general advertisements.

Therefore, to fully achieve the purpose of the OLA , which is to preserve and develop official language minorities in Canada in all cases, it is clear that a service that is integrated in the categories of services listed in subsection 12(1) of the Regulations , and not only the steps or elements that are strictly necessary to provide these categories of prescribed services, must be offered in both official languages. [ 54 ] For the purposes of the analysis in this case, I would add that there does not seem to be any disagreement that advertising signs or other marketing initiatives are methods used for the purposes of providing prescribed services such as those set out in subsections 12(2) and (3) of the Regulations .

In this case, the GTAA admits that the unilingual billboards advertising CIBC’s travel insurance violated the requirements of the OLA . C. The CIBC complaint [ 55 ] As for the CIBC complaint, as a starting point for the analysis, and although this point was not determinative in itself, we are dealing with a business whose essential basic services—banking services—are not referred to in subsection 12(1) of the Regulations , but it is nonetheless a business that includes a series of prescribed services in its service offering, namely, currency exchange, the sale of travel insurance and ATMs.

It seems to me that identifying the basic service of the business is significant in terms of the issue of whether the service referred to in the complaint is a component of a prescribed service of that business. In this case, the GTAA’s evidence at paragraphs 15 to 17 of Kurush Minocher’s affidavit is that CIBC is . . . a financial institution that offers banking and related services at Toronto Pearson pursuant to an agreement with the GTAA. The CIBC services are offered through CIBC Banking Centres, as well as through automated banking machines (“ABMs”).

At the CIBC Banking Centres, representatives offer banking services, such as the opening of an account , the setting up of pre-authorized bill payments, e-transfers, currency exchange and the sale of travel medical insurance . [Emphasis added.]

[ 56 ] As noted above, the GTAA submits that its obligations are limited to the steps or elements that are necessary or essential for providing the prescribed services and therefore, although it acknowledges that the service offering, including the advertising of its ATM and the sale of travel insurance, must be in both official languages, the offer of services and the advertising for its banking services are not subject to this rule.

Thus, it feels that the advertising for the banking centres associated with the CIBC trademark, such as “How can we help you?”; “We’re here for all your banking needs”; “Bank before you fly”; “Do any last minute banking”; “Branch on your right” and “Relax and recharge in our branch” is general advertising and, contrary to the specific advertising for its travel insurance products, is not covered by subsection 12(1) of the Regulations . [ 57 ] I find it difficult to agree with the GTAA that I should somehow distinguish between the idea of traditional banking services which the advertising is intended to promote, and services involving currency exchange and the sale of travel insurance.

The scope of banking services is not defined or limited in any way by the OLA or the Regulations . In fact, from what I can see from the evidence on the record —both the objective evidence and Mr. Minocher’s affidavit—the prescribed services involving currency exchange and the sale of travel insurance, i.e. the services offered at the CIBC banking centre, have become an integral part of CIBC’s banking services.

Although the evidence is limited, it may very well be that in order to obtain CIBC travel insurance, travellers must call a specific telephone number to speak to an insurance broker authorized to sell CIBC travel insurance.

However, it seems to me that the role of banking centres and the representatives who work in them is to serve as the first point of contact with the travelling public for the prescribed services, and they are therefore integrated into those services. [ 58 ] The GTAA proposes that the Court consider whether the sign in question is related to the availability of the prescribed service, or describes the service or provides information about it.

The GTAA claims that the advertising for the CIBC banking centres refers to a “Banking Centre” that offers a variety of services, just like CIBC branches, including the prescribed services of currency exchange and the sale of travel insurance. It is recognized that where signs refer to the availability of a prescribed service such as travel insurance, they should be in both official languages.

According to the GTAA, however, when the availability of a prescribed service is not mentioned, the sign is a general advertisement that does not address the prescribed service and is therefore not subject to the language requirements of the OLA . [ 59 ] I cannot agree with the GTAA’s arguments, because it becomes difficult, if not impossible, to separate advertising for the CIBC banking centre, that is, the nature of the services referred to in the complaint, from the advantage this advertising creates for the prescribed services involving currency exchange and the sale of travel insurance.

It seems to me that when the CIBC poster states, “We’re here for all your banking needs”; “Bank before you fly”; “Relax and recharge in our branch”; “Branch on your right” or “Do any last minute banking”, we could well be dealing with general advertising. However, the prescribed services involving currency exchange and the sale of travel insurance are included in what is provided in response to banking needs. Another question that arises is whether the service referred to in the complaint brings customers to the prescribed service.

Indeed, the more customers the service referred to in the complaint attracts to the prescribed services, the more the signage and billboards regarding the services referred to in the complaint will be considered an essential component or integral part of this category of prescribed service.

In this case, therefore, it seems to me that when the advertising invites or encourages the travelling public to use CIBC banking centres, this creates business for the representatives providing the banking services [ translation ] “such as currency exchange and the sale of travel insurance”, which are both prescribed services. [ 60 ] The GTAA asserted before me that if general advertising is found to be subject to the language requirements of the OLA , the consequences will be enormous for a third-party contractor providing only one prescribed service.

This is because all of its advertising at the airport would have to be in both official languages, and such a requirement would far exceed the objectives of the OLA , which are simply to ensure that travellers at an airport can obtain a very defined list of prescribed services in the official language of their choice, no more and no less. Personally, I do not see the looming apocalypse predicted by the GTAA.

Ultimately, an analysis is required to establish whether the service referred to in the complaint is a component of, and therefore integrated into, a prescribed service, and only if such is the case will there be a requirement for the service referred to in the complaint to be provided in both official languages. [ 61 ] I cannot agree with the GTAA’s assertion that if a traveller goes to one of CIBC’s banking centres and is offered travel insurance by a representative, that offer must be available in both official languages, while the advertising signage that directed that person to the banking centre would not have to be in both official languages if it did not specifically mention the sale of travel insurance.

Once again, it seems to me that the GTAA’s attempt to dissect the various elements of the prescribed service offer hinders the effective implementation of travellers’ language rights and is contrary to the main principles applicable to the

interpretation of the OLA . In my opinion, CIBC’s general advertisements are an integral part of the prescribed services provided by the third-party contractor and therefore should be bilingual.

Otherwise, it is possible that members of the linguistic majority who are attracted by these advertisements to the banking centre offering the prescribed services will have unequal access to these services compared with the linguistic minority. [ 62 ] Therefore, the signs for CIBC’s banking centres and ATMs, the advertising and signage at banking centres and the advertising for services provided pursuant to a contract by the banking centres, which are referred to in the CIBC complaint, are signs within the meaning of subsection 12(2) of the Regulations and must be in both official languages.

I therefore find that the GTAA contravened the OLA in this regard and that Mr. Thibodeau’s language rights were violated as a result. D. The Booster Juice complaint [ 63 ] The situation with the Booster Juice complaint is somewhat the reverse of that involving the CIBC. To begin with, we are dealing with a business whose restaurant services, the normal part of its services, are clearly covered by the Regulations as they are closely tied to the needs and reality of the travelling public.

However, the business decided to expand its service offering to include a service not specifically listed in subsection 12(1) of the Regulations , a play area. [ 64 ] The GTAA maintains that its obligations are limited to ensuring that the prescribed services provided by third parties are available in both official languages, i.e. that each step or element necessary for the provision of the prescribed services should be analyzed separately, and that only those elements that are essential for this purpose, because they are an integral part of the prescribed services, must be provided in both official languages.

The GTAA quotes a definition in which “restaurant” is [ translation ] “a commercial

establishment where meals or refreshments may be purchased” in an effort to limit restaurant services as closely as possible to this definition. Disregarding the Commissioner’s view that restaurant services go beyond the mere sale of food and beverages and that the definition of restaurant does not limit the nature of restaurant services, the GTAA argues that providing a play area is clearly not covered by

section 12 of the Regulations . Although the play area is associated with the Booster Juice counter and is adjacent to the point of sale for a prescribed service, it is not a restaurant, a cafeteria or a step or element in the provision of restaurant services, but rather an activity space designed primarily for children to play in, and is physically separated from the restaurant area occupied by the juice bar.

According to the GTAA, therefore, the “FIT & FUN ZONE” play area is distinct from the restaurant services, and consequently, although Booster Juice operates a restaurant, which is a prescribed service under subsection 12(1) of the Regulations , the operation of the play area is not an integral part of the prescribed restaurant service and is consequently not covered by the Regulations .

Therefore, Booster Juice was not required to have bilingual signage, and there is therefore no violation of subsection 23(2) of the OLA in this case. [ 65 ] Leaving aside for the moment the fact that the nature or scope of restaurant services—as was the case with banking services—is not defined or limited in any way by the OLA or the Regulations , once again, such reasoning can only lead to an approach that dissects the elements of the prescribed service in such a way that hinders the practical implementation of travellers’ language rights.

As with the CIBC complaint, the Court should focus on objective indicators of the nature, function and proximity of the service referred to in the complaint, to more accurately determine whether it is a component or an integral and functional part of a service referred to in subsection 12(1) of the Regulations . [ 66 ] In fact, during the hearing, I questioned the GTAA’s lawyer about the nature and functioning of the play area and why Booster Juice had created such an area for children in the first place. He did not venture to comment, simply stating that there was no evidence on this point.

At first glance, it is clear to me that this space is designed to attract customers, and to help Booster Juice manage the flow of customers waiting at the counter to buy their drinks. It would therefore be reasonable to assume that Booster Juice created this play area as part of its promotional strategy.

Furthermore, as I mentioned earlier, the “FIT & FUN ZONE” play area is adjacent to the juice and smoothie bar, which is the point of sale for a prescribed service. [ 67 ] It should be borne in mind that the Booster Juice complaint involved a unilingual English sign at the entrance to the play area that displayed the Booster Juice logo and read, “Toronto Pearson Booster Juice FIT & FUN ZONE”.

Before me, the GTAA conceded that Booster Juice’s logo on the sign is indeed an advertisement for Booster Juice, but argued that the “FIT & FUN ZONE” sign refers to one thing—the presence of the play area—and that travellers can easily use this play area without having to buy a smoothie. In itself, the “FIT & FUN ZONE” sign is not an advertisement for the restaurant services, but rather for the play area. The GTAA argues that the real question is whether, for travellers who want to go buy a smoothie, being exposed to what is written on the sign is part of their travel experience as smoothie buyers.

According to the GTAA, the answer to this question must be no, because going to the play area is not an essential and indispensable step or element in the purchase of a smoothie. In fact, travellers do not even need to go to the play area to buy their smoothies. [ 68 ] I cannot agree with such a narrow approach to determining language rights in this country.

I recognize that, if a third-party contractor decided to open a children’s play area as its principal activity and members of the travelling public had to pay to access this play area, one could argue that such a service would not be required to be offered in both official languages. But that is not the case here: Booster Juice has expanded its corporate footprint by including a special children’s play area. It seems that the main aim of this area is to advertise its juice bar, attract potential clients to the prescribed service and accommodate any excessively long lines at its counter.

The evidence on the record shows that the play area uses the same colours as Booster Juice and displays signs promoting the prescribed service offered by this third-party contractor. It is clearly part of Booster Juice’s marketing strategy to have a play area right next to its airport counter. Frankly, I see no relevant difference between CIBC’s travel insurance advertising, which, as the GTAA has already recognized, should have been disseminated in both official languages, and the installation of the play area.

Both seem to have only one goal, to attract the travelling public to a prescribed service, the only difference being that the first is a component of the printed material of a prescribed service within the meaning of subsection 12(2) of the Regulations , that is, the sale of travel insurance policies, while the second is a means other than material used to provide restaurant services under subsection 12(3) of the Regulations .

Since the play area is, by its nature, function and proximity, integrally linked to Booster Juice’s provision of restaurant services and is among the choices the third-party contractor has made to promote and offer a prescribed service, it cannot be dissociated from the provision of this prescribed service as a whole. Anything else would be at odds with the purposive approach and broad, liberal

interpretation that we must apply to interpret the Regulations in accordance with the purpose of subsection 23(2) of the OLA ; it is the only way to give full effect to the travelling public’s language rights. [ 69 ] I agree that members of the travelling public can use the play area with their children without having to buy a smoothie or that they can use Booster Juice’s restaurant service without accessing the play area, but that is not the point.

Again, one of the issues is whether the service referred to in the complaint leads customers to the prescribed service; in this case, that seems to be the very goal of the play area. Even if the only purpose of the sign at the entrance to the play area, which reads “Toronto Pearson Booster Juice FIT & FUN ZONE”, is to identify the play area and to advertise it, the fact remains that the play area as such exists to promote Booster Juice’s smoothie bars.

The play area is simply another form of marketing, similar to written signs and advertising, and therefore a means to provide the prescribed service, as provided for in

section 12 of the Regulations . Once again, when advertising invites or encourages the travelling public to use the play area, this advertising is part of the prescribed services and must therefore be provided in both official languages. The unilingual English sign at the entrance to the play area reading “FIT & FUN ZONE” is a means used to deliver the prescribed service provided by Booster Juice.

It is therefore an integral part of this service. [ 70 ] The GTAA insists on their argument, mentioning, for example, the possibility for Booster Juice to simply open a play area at the airport without also operating a smoothie bar. The GTAA submits that since Booster Juice is not providing restaurant services in that case, the play area should not be considered to be a component of a prescribed service that has to be provided in both official languages. I do not find this hypothetical example helpful.

In the case before me, Booster Juice is providing a prescribed service at the airport, which is supported by the attached play area for marketing purposes. In my view, prescribed services are not, as the GTAA submits, strictly limited to the most basic steps or components of the provision of such services. On the contrary, they can include any extensions to the service a third-party contractor may choose to include, such as cloakrooms, valet parking, merchandise counters, children’s play areas and even washrooms, which, according to the GTAA, are not covered by

section 12 of the Regulations because they are not part of the steps of or an essential element in providing restaurant services. It is inconceivable that one might be entitled to receive a service in the

official language of one’s choice while seated at a table in a restaurant, but that this entitlement disappears on the way to the washrooms in that same restaurant solely because washrooms are not explicitly mentioned in subsection 12(1) of the Regulations . Clearly, any objective, reasonable person would be unable to draw such an imaginary line or such a distinction. Indeed, I suspect that was hardly Parliament’s intention.

In my opinion, such complementary services may eventually, and after appropriate analysis, be considered to be part of the full range of the prescribed services, provided to improve the overall customer experience, attract customers and market the service offering. [ 71 ] The sign at the entrance to the play area reading “Toronto Pearson Booster Juice FIT & FUN ZONE” is used in the context of providing a prescribed service, namely, restaurant services, and, in accordance with subsection 12(2) of the Regulations , must be provided in both official languages.

I therefore find that the GTAA contravened the OLA in this regard and, consequently, that Mr. Thibodeau’s language rights were violated. [ 72 ] Finally, as I mentioned earlier, Mr. Thibodeau’s initial complaint only concerned the unilingual English sign at the entrance of the play area reading, “Toronto Pearson Booster Juice FIT & FUN ZONE”.

The record before me contains evidence regarding other potential contraventions involving the play area, such as electronic screens broadcasting video games only in English, as well as a sign next to a screen reading “Toronto Pearson Booster Juice FIT & FUN ZONE” and, on a wall in the play area, a big neon sign reading “BOOST YOUR LIFE”, both of which are only in English. Neither sign displayed a French equivalent. Mr.

Thibodeau is relying on this Court’s decision in Thibodeau v Air Canada , 2011 FC 876 , [2013] 2 FCR 83 at paragraph 95 [ Air Canada 2011 ] , to support his claim that I can take evidence of other violations into account when considering whether the play area is part of a systemic problem and that, if I conclude that the play area must be provided in both official languages, it would be a mistake to simply rule on the issue of the unilingual English sign at the entrance of the play area.

The difficulty I have with this is that none of these other potential contraventions of the OLA have been the subject of a complaint before the Commissioner. I therefore cannot see how I could take them into account here. IV. Remedy [ 73 ] In Doucet -Boudreau , the Supreme Court reminded us that a right is given life only when there is an effective remedy for a violation. Without this, the Crown and its institutions benefit from violations arising out of the inequality of history ( Doucet-Boudreau v Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 SCR 3 at paras 25 and 45 [ Doucet-Boudreau ] ).

This is why it is imperative to grant an appropriate and just remedy in this case. [ 74 ] A quick reading of

section 77 of the OLA reveals just how much this provision reflects the wording of subsection 24(1) of the Charter . Indeed, the Court has recognized that the principles for interpreting subsection 24(1) of the Charter may be applied to subsection 77(4) of the OLA ( Air Canada 2019 at para 64, citing Air Canada 2011 at para 36). Such an approach is warranted not only because some of the language in subsection 77(4) of the OLA and subsection 24(1) of the Charter is almost identical,

[…]