Mr. Chairman, honorable members of the committee, good afternoon.
Thank you for the opportunity to share my experience with you on defending my language rights with Air Canada for several years. I hope that sharing my experience will help you as you study the special report of the Commissioner of Official Languages regarding Air Canada.
I have been defending my language rights against Air Canada for 17 years. The first violation of my rights was in August 2000 when I was on a Montreal-Ottawa flight. The flight attendant did not speak French and when I claimed my right to be served in French she decided to call the police who came to intercept me on board the plane. I could not believe my eyes. The rest is well known: multiple court cases over the years for multiple violations of my language rights through the Federal Court, the Ontario Superior Court, the Federal Court of Appeal and the Supreme Court of Canada.
The legal battles have been long and painful over the years. Air Canada has always wanted to recognize as little as possible and constantly sought to minimize its obligations. I remember the time when Air Canada was arguing that they had an obligation of means and not of result, that the scope of the word “shall” was not the same as “duty to ensure” and that they could not offer a bilingual service because of collective agreements. Fortunately, the courts have brought Air Canada back to order on numerous occasions.
Unfortunately, the problems persist. As you know, multiple complaints of language rights violations are filed annually against Air Canada by the Canadian public. I can tell you that as an individual Air Canada continues to violate my language rights year after year. As recently as last week I was on a Wabush-Ottawa flight and when I got to the Air Canada desk there was only one employee and she did not speak a word of French while Air Canada has the obligation to provide a bilingual service at that location.
How is it that in 2017 Air Canada continues to violate the language rights of francophone passengers while it has been subject to the Official Languages Act since 1969? The answer is probably very simple: there is no mechanism in place to hurt Air Canada enough to change things. I have tried to make a difference over the years with multiple court actions to defend my language rights, but the violations continue.
One of the positive aspects of all these legal battles is that it is now easier to appear before a Federal Court judge and to obtain redress when language rights are violated. The courts—Federal Court, Federal Court of Appeal and Supreme Court of Canada—agreed that a fair and proper remedy is a letter of apology and $1,500 per violation in many cases of language rights violations. Examples of such violations are: lack of service in French, announcement of a pilot in English that has not been translated by the flight attendant, unilingual English announcement at the airport for baggage.
This is not to say that it is easy to enforce one's linguistic rights and obtain redress. I can tell you that if my wife had to go to the Federal Court and go before a judge to explain the situation and get compensation, it would never happen. When she filed a lawsuit against Air Canada to enforce her language rights, it was because I supported her. I was there to prepare the documents and to appear before the judge. If that had not been the case, Air Canada would have violated her language rights and there would have been no consequence. That is what happens in the vast majority of cases. You just have to look at who, other than my wife and I, have filed lawsuits against Air Canada for compensation for violations of their language rights.
Even I, an ardent advocate of language rights who knows how to come before a judge for redress, now chooses out-of-court settlements because it's less time-consuming, less painful, less stressful. Now that the jurisprudence has been established and the scale is well known, being a letter of apology and $1,500 per violation of my linguistic rights, I take the phone and ask those who violated my rights if they want to settle out of court instead of going through the whole judicial process. In a sense, it's a win-win solution because if we settle out of court I get redress for the violation of my language rights and the entity that violated my rights does not have to spend time and money to mount a legal defence that would cost them several thousand dollars. I am not saying that in all cases the result is a letter of apology and $1,500 per violation. The agreements are confidential and I have no right to disclose the contents. What I am saying is that the jurisprudence is now well established and that the scale before the Court is a letter of apology and $1,500 per violation. The only negative side is that it is not made public and therefore the social denunciation that is normally an important element of the reparation is not there.
So, when the Commissioner of Official Languages suggests that there should be a system of statutory damages and/or fines to facilitate the redress process when there is a breach of language rights, I agree. I think it would simplify things and more people would probably be ready to protect their language rights. It should be ensured that the quantum is in line with what the courts have already established, namely $1,500 per violation. If a much lower quantum was chosen arbitrarily, it would be devastating for the defence of language rights and a marked decline from what has already been established in the case law.
Nor should the power now given to judges be reduced, power by which they can make a just and appropriate remedy according to the circumstances. It is a very great restorative power, the greatest in law, and it would be a grave error to limit or repeal this remedial power presently given to the judges. The idea would be to better frame the repair process to make it simpler, more effective and more accessible to "ordinary" people, like my wife, who do not have the means or the desire to go through the judicial system to obtain reparation when their language rights are violated.
A word now on the whole issue of international flights and the end of the protection of language rights guaranteed by the Canadian Charter of Rights and Freedoms.
The Official Languages Act has been amputated since the Montreal Convention and the judgments rendered by certain Canadian courts in recent years, including the Supreme Court of Canada. This is an unacceptable situation that the legislator has never wanted and that must be corrected immediately by specifying the scope of the Official Languages Act and its precedence over the Montreal Convention.
A few years ago, my wife and I traveled internationally with Air Canada. The airline has admitted to violating our language rights on several occasions during these flights. We went to the Supreme Court to defend our language rights. Unfortunately, five of the seven Supreme Court justices ruled that Canadian passengers were not entitled to any damages for the violation of their language rights on Air Canada's international flights because of the Montreal Convention.
The Official Languages Act is clear, however, that the Federal Court judge can decide the remedy that is "just and proper" for breaches of language rights, including damages. Yet the Supreme Court has ruled that, in the presence of the Montreal Convention and the Official Languages Act, the Montreal Convention prevails. All of a sudden, they cut the Official Languages Act and withdrew the power to award damages for international flights from the Federal Court judge. This means that we had to give back to Air Canada the $4,500 awarded by the Federal Court for the violation our language rights on international flights, three violations at $1,500 per violation equaling $4,500.
Two of the Supreme Court justices disagreed with the fact that the Montreal Convention would be more important than the Official Languages Act. They said this in the judgment of the Supreme Court in 2014:
|| ...Article 29 of the Montreal Convention should be interpreted in a way that is respectful of the protections given to fundamental rights, including language rights, in domestic legislation.... There is no evidence in the Parliamentary record or the legislative history of the Convention to suggest that Canada, as a state party, intended to extinguish domestic language rights protection by ratifying or implementing the Montreal Convention. Given the significance of the rights protected by the Official Languages Act and their constitutional and historic antecedents, the Montreal Convention ought to be interpreted in a way that respects Canada's express commitment to these fundamental rights, rather than as reflecting an intention to subvert them.
|| Just as Parliament is not presumed to legislate in breach of a treaty, it should not be presumed to implement treaties that extinguish fundamental rights protected by domestic legislation.
|| Consequently, the Montreal Convention does not bar a damage award for breach of language rights during international carriage by air.
Like the Commissioner of Official Languages and the two judges of the Supreme Court of Canada, I also believe that the Official Languages Act must take precedence over the Montreal Convention and that damages must be part of the arsenal of the Federal Court judge to protect the language rights of Canadians. Air Canada must be accountable for violating our language rights on international flights.
Thank you for your attention.
With that, I am ready to answer your questions.
Thank you, Mr. Thibodeau, for agreeing to come here at the last minute. Thank you as well for the courage you have shown as a Canadian in addressing such a major issue and devoting your energy to it for many years. Your wife has also contributed to that effort. We have laws in Canada, and it happens that some of them are not complied with. We therefore need individuals such as you to take the initiative in these types of situations. You are simply rendering a service to society.
Since official language issues are new to me, I am in no way an expert. Pardon me then if my questions seem somewhat amateurish.
How do you view the fact that Air Canada is the only private sector company subject to the Official Languages Act?
Do you feel that every service must be bilingual?
What are your relations with companies other than Air Canada?
I do not know whether my question makes sense.
On that point, I think there is a difference between institutional bilingualism and individual bilingualism. In the case of institutional bilingualism, the institution itself must provide services in both official languages. However, I think it would be difficult and perhaps socially unacceptable to require that all Air Canada employees be bilingual.
I have no objection to it being the institution that provides services in both official languages. Consider the example of my trip to Wabush last week. When I arrived, I saw that the employee at the counter was a unilingual anglophone. I asked her to serve me in French. She looked at me for a moment and then agreed to my request. She went to find someone who was bilingual. A little later, after going through security, I realized the same unilingual anglophone employee was checking passports before boarding. There was a bilingual employee somewhere. I was a bit angry, but I have learned over the years that, in these kinds of cases, when you are not served in French, the best thing is to take notes and file a complaint with the Office of the Commissioner of Official Languages.
I am not sure the bilingual person who was sent to me was part of Air Canada's staff, but I am inclined to believe so since that individual was standing behind the Air Canada counter. In that kind of situation, Air Canada could probably have assigned that bilingual person to both counter service and checking boarding passes. I could not tell you why that was not done. Without closely examining matter, I would say that bilingual capacity was there.
I do not understand why, in 2017, unilingual employees are assigned to services that should be bilingual. Earlier I spoke with Mr. Généreux. I think the time has come to slap Air Canada on the wrist.
Thank you for being here, Mr. Thibodeau. I already know something of your situation. When Graham Fraser's special report on Air Canada arrived, I thought we should to do something immediately, but we took the time to conduct the study, meet with Air Canada offices, see what could be done, meet with the unions, and so on.
I was listening to you earlier, and you actually described how I react when I realize my language rights are not being respected. I say to myself that I do not have the time to file a complaint and that I have other things to do. So I often disregard it, and I am convinced that many other citizens do the same thing. Consequently, we are not getting a true picture of the situation when Air Canada says very few complaints are filed.
Thank you for your question.
I think it has to be a mixture or combination of what the Commissioner of Official Languages proposed. With respect to enforceable agreements, I know perfectly well there have been agreements over the years between Air Canada and the Commissioner of Official Languages that have not always been complied with. That is more the Commissioner's responsibility, but I would consider that a good option.
The Commissioner said he could not institute proceedings against Air Canada as long as an enforceable agreement was in effect. I think that, if one is in place, it should ensure that individuals can nevertheless file suit against Air Canada. I would not like to see my language rights violated while a one-and-a-half-year agreement was in place with Air Canada.
I do not know whether you know, but when the Commissioner submits his investigation report, a citizen has 60 days to file suit. The Commissioner may not be able to do so if that is put in place, but individuals whose language rights are violated might be able to do so. I think it is also important that something be done about statutory damages and fines.
To clarify what you said, the various judicial levels have held that $1,500 per violation is just and appropriate remedy in the case, for example, of an announcement made in only one official language. This is not something automatic. That must be clearly understood. You will not be awarded $1,500 per violation and a letter of apology merely for appearing in court, but that is a scale. You know the law: judges must rely on what has previously been settled in case law. We have seen it at three levels: the Federal Court, the Court of Appeal and the Supreme Court. They have held that the sum of $1,500 per violation is appropriate.
Since individuals do not appear in court to fight—that does not happen; I have been doing it for 17 years and I am the only one—your proposal to Parliament should suggest a parallel mechanism that makes it more automatic or easier. In that way, people may feel they are potentially entitled to $1,500 and a letter of apology if an institution violates their language rights. For the moment, they may file a complaint, and Air Canada may eventually stop violating Canadians' language rights.
This is 2017, the Official Languages Act has been in existence since 1969, and, last week, Air Canada was still violating my language rights. If we continue on the same path and no one goes to court, nothing will change and the situation will be the same in 5, 10, 15 and 20 years.
I think that you, as a committee, can suggest much more obtainable penalties for passengers. Things will change because that will hit them in the wallet.
I think it is quite easy. Former member Stéphane Dion introduced a very simple bill, which unfortunately died on the Order Paper
, providing that the Montreal Convention should have no effect on the Official Languages Act. I believe the government should table a similar bill.
I do not know whether you understand what that interpretation means. Consider this example. Two passengers take the same Ottawa-Toronto flight. One of them deplanes in Toronto, while the other continues on to Paris. Air Canada is required to provide service in both official languages and it knows it. There are no francophone flight attendants on the Ottawa-Toronto flight. The language rights of those two individuals have thus been violated. The one who deplanes in Toronto is entitled to file suit and potentially to be awarded $1,500. However, the one who continues on to Paris is now on an international flight. We have the same Official Languages Act, the same violations, and the same lack of service in French, but the court will find that, if that person had deplaned in Toronto, she might have received an award, but since she continued on to Paris, she is entitled to no compensation. That is absurd.
With all due respect, when the Supreme Court held that it was taking nothing away from the Official Languages Act in deciding as it did, it nevertheless took away the $4,500 that we had received and deprived all Canadians who travel internationally of the possibility of compensation.
The law is very clear. As a lawyer, you know that. Where there are no restorative measures, the law is dead. At present, the law is dead at the international level.
The court may order Air Canada to write a letter of apology, but do you not think its officers will laugh at that? They will take a standard document, add a name and address, affix a stamp, and, voilà, case closed. Internationally, the law is dead.
I am saying that Parliament must act, and quickly. It must tell the legal system that the Official Languages Act is more important than the Montreal Convention.
I am very well served by highly competent people who know the files. According to the Official Languages Act, that is how you should act.
The legal trigger that enables me to appear before the Federal Court is the complaint I file with the Commissioner. Under the Official Languages Act, any person, any complainant who files a complaint may subsequently go before the courts. If I filed a complaint through another organization, I would probably not be entitled to do so.
I do not know whether you are aware of this, but the Commissioner of Official Languages has two ways of solving these problems. The first is an informal system. In other words, he tries to solve the problem with the person concerned. The second is the formal investigation system, through which he determines whether the complaint is founded.
Personally, I always opt for the formal process because I do not want to have to debate with a judge as to whether one of my rights has been violated. I ask the Commissioner for a note stating that my right has been violated. Then I can file suit. When I go to court, it is much easier than having to file evidence. Imagine the situation if I had to do that.
Yes, and the news was also reported in the press.
I phoned Le Droit to tell them I had asked to be served in French and the police had been sent after me. Imagine... The journalist arrived at my home shortly thereafter.
I proceeded by email every time. There was no form to complete and the process was very simple. I explained what had happened, that I was in Wabush on such and such a date, at such and such a time, and that I was not served in French. I sent the email.
I know now that this takes time. I used to check every other day to see if I had received a reply. Now I know the answer will not come for months, five or six months.
I am not saying it is perfect, but I wait for the answer, and when I receive it, I call Air Canada to say that the company has re-offended and to ask what it intends to do.
As far as I can remember, no. I do not remember.
It was much more difficult at the outset. Now it is much easier because Air Canada knows me and knows what I can do.
Its lawyers initially fought over minor points. I can tell you that I once found myself before a judge in Montreal and one of Air Canada's lawyers said that, if the incident occurred again, Air Canada had the power to throw me off the aircraft. That was said before a judge. The lawyers fought over details because this was new, there was no case law, and they thought they could do what they wanted with me.
After a number of years, however, they realized they could not easily get the better of me. They got to know me, but it was enormously difficult, so much so that I once passed out in front of three Appeal Court judges because I was exhausted and I had files that were piling up. The Appeal Court judges told Air Canada that its appeal was much more oppressive than meritorious. The company wanted to beat me up, and it has the resources to do that, but now it knows me.
That is curious because, in France, the word “exit” is used more than the word “sortie,” and yet it is a francophone country.
That is simply to say that francophones who travel to Paris on Air Canada will probably hear more English words there than they did before leaving Quebec or Canada.
I am still playing the devil's advocate. I want to hear what you have to say so I can understand the arguments you make. I am not defending Air Canada in any way.
Do you think that a business like Air Canada, which is now a private company, makes a good faith effort to provide the service for which it is responsible under the Official Languages Act? There is a certain breach.
I am coming back to the situation that occurred in Wabush, of which you spoke.
Incidentally, 3.9% of Wabush's population of 1,800 inhabitants is francophone. So that is less than 5%.
I have represented myself in most cases. I learned the law in my living room by spending entire nights and weekends reading documents. I have had to spend thousands of hours studying the subject.
When we appeared before the Supreme Court of Canada, we were represented by lawyers. Apart from that, I have represented myself in the Federal Court of Appeal and the Superior Court of Ontario.
Why did I appear before the Superior Court of Ontario? When Air Canada sought protection under the Bankruptcy and Insolvency Act, it tried to treat me as a creditor and thus to exclude my complaint. I was forced to go to Toronto to fight, and the judge ruled that the financial portion of the complaint would be handled in the same manner as in the case of creditors but that a letter of apology had to be provided. In the end, I was awarded $700.
As regards the violation of my language rights—which was very significant—I fought before the Superior Court of Ontario because Air Canada wanted to argue that, as a creditor, I was entitled to nothing. That is why I petitioned the Superior Court of Ontario, about which, incidentally, I knew nothing.
To answer your question off the top of my head, I would say I would proceed in stages. One of the Commissioner's recommendations is to verify or review the situation every 5 or 10 years to see how it is evolving.
As committee members, as elected MPs, and as the government, you could introduce measures such as fines or damages—$1,500 per violation—and assess how that evolves over time, over the next five years. If, after five years, still no complaints have been filed and Air Canada is still not serving its customers in both official languages, you might find that the system does not work. That would mean we would not find ourselves in the same situation in 2039.
There could be a staged procedure involving various approaches and—I just want to go back to this point—it would make no difference whether the Commissioner of Official Languages or the court imposed the $1,500 fine.
Currently, a Federal Court judge alone may impose fines. It would be even easier if it could be explained to judges that, even though they retain the right to order just and appropriate remedy, the government, the committee, and Parliament believe that a fine should be approximately $1,500.There might be an information tool designed to make this possibility known to the general public. You could try solutions to see if they change the situation, and if it does not change in the next five years, you could try something else.
I think that would make for a good debate. We could review the system in five years. Whatever the case may be, it is better than the amount currently offered. Today people do not know whether they are going to be paid $100, $200 or $500. As I told Mr. Généreux, in an airport where we recently found ourselves, the airlines responsible for overbooking aircraft were offering $800 to people who were prepared to wait for the next flight.
In this case, we are talking about a violation of charter rights. It is important to understand that I was not the one who set the $1,500 amount. It was the judges of the Federal Court, the Court of Appeal and the Supreme Court of Canada. They considered the matter and, having regard to other cases in which rights had been violated, charter rights in this case, pondered what such a violation might be worth. There were previously no relevant scales. The courts considered that, as the amount had been $3,000 in one case and $10,000 and another, the violation was worth $1,500. It was the courts that decided on the amount, not me. In short, they found that a violation of charter language rights was a serious act and that, consequently, the amount awarded would be $1,500. I think that is a good start.
Will that solve all problems? No.
I hope it will ensure that offenders have their wrists slapped a little harder and that the problems are solved.