In a 1945 novel, Canadian author Hugh MacLennan described the existence of "two solitudes" in Canada. Some have remarked that the term refers to "a perceived lack of communication, and, moreover, a lack of will for communication between Anglophone and Francophone people in Canada".
The Official Languages Act is an attempt to bridge these 'two solitudes' by guaranteeing Canadians the right to deal with federal institutions in either official language. When Air Canada started out as a crown corporation, it was a federal institution and thus bound by the act. When it was privatised in 1988, the legislation that gave effect to the privatisation specifically provided that Air Canada would continue to be bound by the act.
In mid-July 2011 a battle took place between the act and the Montreal Convention liability regime.(1) The convention lost.
The case arose from a series of flights taken by Michel and Lynda Thibodeau in January and May 2009 between Canada and the United States on Air Canada and Jazz (with which Air Canada had a capacity purchase agreement). On some of the transborder legs of these itineraries the Thibodeaus did not receive services in French on check-in, onboard the aircraft and at the airport baggage carousels located in the relevant arrival airports.
For this, they sought a declaration that Air Canada had breached the act, an apology and damages (general and punitive).
As a starting point, it is important to note that Section 22 of the act provides that:
"every federal institution has the duty to ensure that any member of the public can communicate with and obtain 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… in Canada or elsewhere where there is a significant demand for communications with and services from that office or facility in that language."
The regulations under the act define 'significant demand' by specifically prescribing certain departure and arrival cities which require bilingual service, in addition to describing circumstances in which other cities may also require bilingual service.
Air Canada conceded that on four occasions, bilingual services were not provided to the Thibodeaus when the legislation required it. However, it denied responsibility for an instance at a baggage carousel because it alleged that responsibility for making the announcement lay with the airport authority.
For its transgressions, Air Canada did not object to the court rendering a declaratory judgment to the effect that it had breached its language duties under the act. In addition, it consented to providing the Thibodeaus with a letter of apology - and went so far as to tender a draft to the court. However, it did not agree that any further remedy was required and denied that it had any systemic problems.
The Thibodeaus each sought general damages of C$5,000 for each incident, as well as C$500,000 in punitive damages overall. Air Canada argued that any such damages were limited by the convention for those breaches which occurred on a transborder flight. As expected, Air Canada cited Article 29 for the proposition that the convention sets out an exclusive liability framework for international carriage by air, and that since the convention does not explicitly provide a remedy, none exists.
Air Canada submitted that in deciding the complaint, the court must adopt an interpretation of the act that is in harmony with the convention, and that - in keeping with the jurisprudence under the convention and its predecessors - it is not appropriate to award damages when breaches of the act occur during international carriage by air.
The Thibodeaus (and the commissioner of official languages, who was an intervener in the case) took issue.
They argued that the convention does not limit the court's power under Section 77(4) of the act to "grant such remedy as it considers appropriate and just in the circumstances".
In meeting Air Canada's arguments, the commissioner advanced the position that Air Canada is the only air carrier in the world that is subject to the remedy provided by the act, and that it would be "illogical" to conclude that signatory countries and Canada in particular want implicitly to "achieve uniformity" of the official languages rules that apply only to Air Canada. Rather, the commissioner argued, the convention was intended to deal only with "death or bodily injury" resulting from an "accident".
In the alternative, the commissioner argued that in a conflict between the convention and the act, the latter must prevail, due to its quasi-constitutional status. In this respect, the commissioner noted that Section 82(1) of the act explicitly provides that the relevant substantive sections of that legislation prevail where they are inconsistent with another act of Parliament.
Justice Bédard of the Federal Court of Canada began her analysis of these arguments by noting that:
"[i]t is clear that the Montreal Convention does not impose linguistic duties. Air Canada is the only air carrier subject to the [Official Languages Act], and the matters that this legislation addresses are unrelated, as such, to international carriage and also do not concern the other countries that are signatories to the Convention."
However, the court had to recognise that there was strong precedent (eg, from Sidhu v British Airways  1 All ER 193) for "strong exclusivity" - that is, the position that the language in the convention precluded any claims that were not explicitly contemplated in it.
Having acknowledged this finding in the jurisprudence, Bédard wrote that:
"since I feel bound by the [Warsaw/ Montreal] case law, despite my reservatins, I conclude that there is a conflict between the Montreal Convention and the Court's remedial power set out at subsection 77(4) of the [Official Languages Act]."
Bédard held that not making an award of damages would result in a significant weakening of the act, but that to do otherwise would be to depart from the Canadian and international case law interpreting the convention.
The court resolved the conflict by allowing the act to prevail on two grounds.
First, Bédard noted that the legislature explicitly gave precedence to the act by providing that the substantive sections of the act identified in Section 82(1) were to prevail over other legislative enactments (even though the remedial provisions that flowed from the substantive sections of the legislations were not explicitly enumerated under Section 82(1)).
Second, the court gave precedence to the act in order to give effect to its quasi-constitutional status. Bédard observed that making this determination would not undermine Canada's international obligations or integrity because the act affects no air carrier other than Air Canada, given its status as an "old federal institution".
She commented that:
"[a] departure from the Montreal Convention to ensure 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. … [T]his is a very minor circumvention of the Montreal Convention that has no impact on the liability of the other carriers subject to the Convention or Canada's treaty obligations; thus the remedy and penalties set out in the [Official Languages Act] receive their full effect."
The court then turned to the issue of general damages. Citing authority for the fact that there is always an element of arbitrariness in assessing damages for moral prejudice, Bédard ordered that theThibodeaus should each receive C$1,500 for each breach of the act (for a total of C$12,000).
The court then had to decide whether Air Canada had systemic problems in complying with the act and, if so, whether an institutional order was appropriate. In order to decide this, the court examined the incidence of similar complaints against Air Canada. In this respect, Air Canada argued that when considering the number of points of contact between the airline and its passengers, the number of complaints filed was low.
However, the court noted that this was not a reliable indicator of Air Canada's actual performance. It cited the fact that Jazz admitted that two Anglophone-only flight attendants were assigned at least 200 times on flights that required Francophone service, but that no other complaints were filed under the act.
The court found that:
"it would have been fundamental for Jazz, after all these years, to have a staff assignment system that identifies all routes requiring bilingual personnel. This is the least that can be done to ensure that services are provided in compliance with the [Official Languages Act]." (emphasis appears in decision).
Bédard also expressed surprise that Jazz did not have a monitoring system that enabled it to determine the number of times that no bilingual flight attendant was assigned to a flight requiring services in French.
Although the court acknowledged that Air Canada and Jazz were making efforts to comply with their linguistic duties, it held that the Thibodeau breaches were not isolated.
As a result, the court found that systemic problems did exist. Air Canada was ordered to:
"make every reasonable effort to fulfill all its duties under… the [Official Languages Act] and to ensure that it implements a monitoring process to allow it to identify and document occasions on which Jazz does not assign the required bilingual personnel on board flights that require service in French."
Finally, the court had to address the request for C$500,000 in punitive damages. It considered each of the breaches of the act as against the Thibodeaus and concluded that in only one case did the Air Canada staff display "a nonchalant attitude trivializing the [Thibodeau's] rights".
This was found to be an isolated incident that did not reveal a malicious, oppressive and high-handed attitude, and as such did not call for such a remedy.
A modest amount for costs was awarded to the Thibodeaus for their success.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected]).