Official Languages Committee on June 8th, 2017

[The Chair, Liberal, Denis Paradis]

Good morning everyone.

First I'd like to make a few remarks. We are moving on to another file this morning, that of Air Canada. I thank all of the members of the committee for their cooperation involving everything regarding the Commissioner of Official Languages file. We have just concluded another step.

This morning we welcome representatives from the Office of the Commissioner of Official Languages in the context of our study of Air Canada's implementation of the Official Languages Act.

We will proceed in the following way: the first part of the meeting will be public. I know that confidential information is going to be provided, but we will sit in camera subsequently. We will begin with a public meeting.

We are pleased to welcome the representatives of the Office of the Commissioner of Official Languages: Ms. Pascale Giguère, Director and General Counsel, Legal Affairs Branch; Ms. Mary Donaghy, Assistant Commissioner, Policy and Communications Branch; Mr. Jean Marleau, Acting Assistant Commissioner, Compliance Assurance Branch, and Ms. Carole Séguin, Senior Investigator, Compliance Assurance Branch.

You will have about 10 minutes for your presentation, and then we will take a few minutes to hear additional information in camera. We will then have questions and comments from the members of the committee.

I will decide later when we will sit in camera. I invite you to make your presentation.

The clerk pointed out that this is a briefing session. For those who are listening to us, I want to specify that this is a briefing session following meetings we held with regard to the Air Canada dossier.

I thank you very much for your presence.

Ms. Giguère, you have the floor.

[Pascale Giguère, Director and General Counsel, Legal Affairs Branch, Office of the Commissioner of Official Languages]

Thank you very much, Mr. Chair.

I will begin immediately with a point of information by mentioning that we do not necessarily have confidential information to provide to the committee. However, if the committee wishes to go into more depth on certain issues, at that point going in camera might be an option.

We have information to provide to your committee this morning. We are happy to proceed in this way as long as it suits the committee.

On behalf of the Interim Commissioner of Official Languages, Ms. Ghislaine Saikaley, and on behalf of the colleagues joining me today, Ms. Mary Donaghy, Assistant Commissioner, Policy and Communications Branch, Mr. Jean Marleau, Acting Assistant Commissioner, Compliance Assurance Branch, and Ms. Carole Séguin, Senior Investigator, Compliance Assurance Branch, I would first like to thank the committee for having undertaken this important study on Air Canada's implementation of the Official Languages Act.

It goes without saying that the Office of the Commissioner of Official Languages has followed your work with interest. We await your report with enthusiasm.

We wanted to appear before you today in order to provide a technical briefing and elaborate on some of the proposed solutions put forward in the report.

After 10 years as commissioner, Mr. Fraser believed that the issue pertaining to Air Canada's compliance was one of sufficient importance to provide Parliament with a special report on the situation.

It is only the second time in the history of our office that a special report has been tabled in Parliament.

The special report was a summary of the interventions of the commissioner regarding Air Canada, as well as of those of the five commissioners who preceded him. The report also mentions the conclusions—including yours—of parliamentary committees that have examined the situation at Air Canada over the years.

In the report, the commissioner proposes to amend the Air Canada Public Participation Act to clarify some of Air Canada's language obligations and, most importantly, strengthen enforcement mechanisms in cases of non-compliance.

The report contains a single recommendation addressed to Parliament: that the special report be referred for study, on an urgent and priority basis, to one of the official language standing committees.

As mentioned in the recommendation, this special report is the last tool in the commissioner's tool box. All the other tools have failed to produce tangible results. Therefore, the commissioner is looking forward to seeing one the standing committees on official languages study the special report in order to make strong recommendations to the government on the appropriate legislative amendments necessary to strengthen the enforcement regime applicable to Air Canada.

Since the special report was tabled in June 2016, the situation has not changed. We continue to receive complaints and to make recommendations that lead to very little progress.

I'm going to ask my colleague Mr. Jean Marleau to briefly present a summary table of compliance by Air Canada over the last year.

[Jean Marleau, Acting Assistant Commissioner, Compliance Assurance Branch, Office of the Commissioner of Official Languages]

Thank you.

Again this year, Air Canada was the federal institution that received the most complaints with respect to service to the public.

In fiscal year 2016-17, the number of admissible complaints received against Air Canada was nearly triple the number received in 2015-16. The majority of complaints filed against Air Canada deal with long-standing issues that have been brought to the attention of all of the commissioners many times over the years. Investigations have demonstrated time and again that in-flight and ground services are not always available and of equal quality for travelling members of both language groups.

All of the commissioners have investigated the aforementioned official languages incidents filed against Air Canada, and despite their interventions and numerous recommendations, the fact remains that the situation with respect to official languages has evolved very little, and Air Canada still faces difficulty in conforming to the act.

In short, our current authority to issue recommendations is not enough.

[Pascale Giguère]

It is precisely because the situation has lasted for many years that Commissioner Fraser deemed it sufficiently important to ask Parliament to study the matter.

The study undertaken by your committee is thus extremely important, in order to analyze the options presented in the special report, and to provide recommendations to Parliament on appropriate legislative amendments.

Since the commissioner has elected to turn to Parliament on this very important issue, your work will enable Parliament to give clear guidance to the government on what, if any, legislative changes it should be considering.

Allow me now to speak to you about the potential solutions proposed in section 3 of the special report.

In section 3 of the special report, Commissioner Fraser concludes that the current methods of enforcement have had little effect on Air Canada's level of compliance. Therefore, he submits four options for consideration by Parliament that could strengthen the current enforcement scheme.

The enforcement mechanisms presented as options by the commissioner are: enforceable or compliance agreements, statutory damages, fines, and administrative monetary penalties.

Let me walk you through each of these options.

First, enforceable agreements or compliance agreements have recently been added to the tool box of the Privacy Commissioner. Under a compliance agreement, an organization agrees to take certain measures to bring itself into compliance with the act. While it would be a step in the right direction, this tool alone would not guarantee success and would be effective only if used in conjunction with other options.

The second option is that of statutory damages. The Air Canada Public Participation Act could be amended in order to give the Federal Court the power to grant statutory damages. This type of damage is different, since the plaintiff does not have to prove that the offence has caused injury. A range of damages could be provided for different offences in the law so that the Federal Court could evaluate the appropriate amount in light of various factors.

A third option examined in the report is fines. Since fines can be an incentive to comply with the law, the Air Canada Public Participation Act could be amended to include a list of various violations for which fines would be determined. This type of sanction is not new in the area of language rights. For example, the Nunavut Official Languages Act and Quebec's Charter of the French Language contain provisions regarding fines that can be imposed by the courts. At the federal level, this tool is also available to other agents of Parliament: the Information Commissioner and the Commissioner of Lobbying have provisions for fines in their legislation.

Finally, the fourth option is administrative monetary penalties, AMPs. Many federal regimes already provide for this type of sanction. The AMPs are imposed by the organization charged with monitoring the application of the act rather than by the courts—in this case by the Office of the Commissioner.

Among officers of Parliament, the Conflict of Interest and Ethics Commissioner has the power to impose AMPs, and Air Canada is subject to several administrative monetary penalty regimes; for instance the Canadian Transportation Agency can impose AMPs on airline companies regarding advertising, prices and airline services.

Also, the Canada Border Services Agency and the Competition Tribunal have the power to impose administrative monetary penalties on airline companies, including Air Canada.

After reviewing the various options to strengthen the enforcement regime applicable to Air Canada, the report also mentions, on page 28, Air Canada's position that all airlines in Canada should have to provide services in both official languages. In our opinion, the standardization of language obligations would be an even stronger argument in favour of considering an appropriate enforcement framework.

Section 3 ends with an overview of the commissioner's position that, following Air Canada's restructuring, legislative amendments continue to be needed to maintain the language rights of the travelling public, as well as Air Canada employees.

The commissioner has reiterated many times in the past to successive ministers of transport the need to introduce a new bill. However, no legislative amendments have been made since 2004. The commissioner also mentions the need to amend the Carriage by Air Act to clarify that the Montreal Convention does not restrict the awarding of damages under the Official Languages Act.

In conclusion, despite sporadic improvements and promising action plans, the commissioner was of the opinion that the time had come to note that the powers he had under the law were insufficient with regard to Air Canada. Since this special report to Parliament is the last tool the commissioner had, he recommended to Parliament that the study of this report be entrusted to one of the two standing committees on official languages.

We believe that your report will be decisive with regard to the future of Air Canada's linguistic obligations and in light of that, we would like to propose the names of certain witnesses who could also contribute to your study. We have given the clerk a list containing a few suggestions.

In addition, we prepared a condensed summary of excerpts from relevant documents. Some of them are quoted in our special report and concern the issues that are discussed in it.

I thank you on behalf of my colleagues. We will be happy to answer your questions to the best of our ability.

[The Chair, Liberal, Denis Paradis]

Thank you very much for your presentation, Ms. Giguère.

We will go immediately to our question period, and begin with Ms. Boucher.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Thank you, Mr. Chair.

I thank all of you for being here this morning. Thank you also for this magnificent “bible”.

I see that over the past 40 years Air Canada has not evolved much. Despite numerous reports and recommendations made to Air Canada, very few things were done by one government or another.

A little earlier you mentioned that you had received three times more complaints in 2016-17. For comparison, how many were there in the previous year? What are the most frequent complaints made about Air Canada? They most likely come from francophones. What type of complaints do you receive most often?

[Jean Marleau]

Thank you for the question.

We compared the number of complaints we received about Air Canada last year to the number of complaints received in the previous year. So there were three times more complaints. This year, in 2016-17, there were 101 more complaints.

The complaints do often come from francophones, that's a well known fact.

As to the nature of the complaints, they are the ones that were discussed in the past. They concern in-flight service or service before flights. It's a combination; there are factual complaints, etc. We could provide more details if needed, but they are the same classic complaints that are made year after year.

[Mary Donaghy, Assistant Commissioner, Policy and Communications Branch, Office of the Commissioner of Official Languages]

I simply wanted to direct your attention to the fact that in this “bible” you will find a complete history of complaints. It will not provide specific information on the nature of those complaints, but you can at least see how many there were every year.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

When I look at this list, I see that in 2016-17, the total number of complaints is at 1018. This means that there were additional complaints. The situation is not improving, even though we meet with people from Air Canada often, we put questions to them, and they tell us that they are very attentive to official language issues. What we see here proves the opposite. In other words, the service Air Canada provides to the linguistic minority is not adequate. That is what I understand from your table

[Jean Marleau]

That is correct.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

I wonder, in light of all the work you have put into the Air Canada dossier, if you have the impression that these people want to improve the situation.

Do you get that impression when you or the commissioner talk to them?

[Pascale Giguère]

The report indicates, I believe, that there have been sporadic improvements. So the trajectory has not been linear. We were given action plans that seemed promising.

In section 1 of the report, we describe the history of complaints and verifications. It shows that over the years the various Commissioners of Official Languages have thought repeatedly that the situation was improving and that these people would comply with the rules. They noted a few improvements, followed by setbacks. The overall conclusion the commissioner comes to in his special report is that the situation has not improved since 1969. And that is in fact what all of the commissioners observed over the years.

At tab 5 of the document we gave you, there is a report of the Standing Joint Committee on Official Languages, from February 2002. We provided this document so that you could have a look at the history that was written by the Standing Joint Committee on Official Languages at the time.

I think that if you read the history, which basically summarizes everything the various commissioners and committees did, you will see that that committee came to the same conclusion, which was that after several years there was still no concrete progress, despite promises that seemed to indicate that improvements would be made at a given point.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mrs. Boucher.

I now give the floor to Mr. Lefebvre.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you, Mr. Chair.

I'd like to mention that we have been discussing this topic for more than a year. The first time the Air Canada representatives came to meet with us, we were disappointed. They came back afterwards to the committee, and I felt a more positive attitude. We thought that Air Canada had understood, and that it wanted to go forward and do certain things. However, now you are telling us that the results are worse than those of last year and the previous year, and so I have some concerns.

Last week, or two weeks ago, we heard from a representative of the Department of Transport. I must admit that I was somewhat perplexed and even a bit concerned, as I had had the impression that there had been an improvement. The Transport Canada representative more or less said that the department should perhaps eliminate the obligation of providing services in both languages contained in the act. It was not that explicit, but it was implied. That is how I understood things, and that is what concerns me.

That being said, Ms. Giguère, I know that you mentioned three possibilities in your statement. There were the recommendations in the report of the Commissioner of Official Languages. There is also the option of requiring that all Canadian airlines, or the ones that provide national service, offer services in both languages. Finally, there is the option of completely eliminating that obligation, as the Transport Canada representative implied. What is your reaction to these two options, either imposing the same obligation on all of the airlines, or backing down and eliminating the obligation?

[Pascale Giguère]

We are not in a position to provide opinions to you. As we indicated, we are here to provide a technical briefing to the committee and an opportunity for an in-depth look at what is in the commissioner's report. However, we can say that in this report we did include Air Canada's position very transparently. We know that Air Canada is asking that the linguistic obligations be imposed across the board on all carriers. This is not an option put forward by the commissioner. In submitting the options that seemed the best to us, we also wanted to provide Air Canada's perspective, so that the report really contained all of the options submitted by everyone.

The reason why we gave you a document today is to inform you of Parliament's intent to maintain Air Canada's linguistic obligations over the years. In the table of contents, in the first section, the three first documents in the package show this. I think that we can say in a factual way that there has always been a commitment—that is what we see—on the part of Parliament to maintain Air Canada's linguistic obligations. The various governments that succeeded each other maintained that commitment.

[Paul Lefebvre, Liberal, Sudbury, ON]

They did maintain that position. I understand that.

You mentioned that in 2004, the government had put something in place with regard to Air Canada, or that it did something... I misunderstood what you said in your presentation. You said that something occurred in 2004. Could you explain in more detail what that was?

[Pascale Giguère]

In 2004, Air Canada withdrew from the protection of the Companies' Creditors Arrangement Act. It had placed itself under the protection of that act in 2003, but in 2004, it got itself out of that situation financially with the help of a corporate structure that was extremely different from the one it had prior to that. Air Canada would in future be managed by a holding company, and some of its subsidiaries would be completely removed from its structure and become independent legal entities.

This led to a sudden deterioration of the linguistic rights that were previously guaranteed by section 10 of the act governing Air Canada. The commissioners, Ms. Adam, and then Mr. Fraser, as soon as he was appointed, made representations to the government, asking it to intervene so as to maintain the obligations that were in effect previously. Successive governments tabled bills, but none of them were passed and they all died on the order paper.

[Paul Lefebvre, Liberal, Sudbury, ON]

You spoke of mechanisms we could put in place, such as compliance agreements, statutory damages, fines, and administrative monetary penalties.

You said that other departments or commissions used similar mechanisms. Could you provide more information on that? You said that other commissions could impose penalties if an organization did not respect its obligations. Is there anything else we should also review? There is a precedent, as this already exists within government.

[Pascale Giguère]

In the report we provide certain examples for each one of the options presented. We indicate whether other officers of Parliament have this power, and if it is already used in Air Canada's case, for instance as concerns the administrative monetary penalties. I could certainly review each one of these options, but it would be a bit long. Generally, regarding linguistic rights, there are certain examples. I spoke of the fines. That mechanism would require that we amend the law, of course, but it would be administered by the courts, by the Federal Court, which would have the power of imposing fines. Something similar is included in the Official Languages Act of Nunavut regarding language rights.

[The Chair, Liberal, Denis Paradis]

Ms. Giguère, I'm sorry to interrupt you, but I must now give the floor to Mr. Choquette.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

I am going to continue in the same vein.

The special report sets out four options: the compliance agreements, statutory damages, fines, and administrative monetary penalties. When I asked the Transport Canada representatives if they had begun to examine those options, they replied that they were waiting for our recommendations. I think they had also received the report. In fact, I hope they did. Be that as it may, they had not yet begun to look at this, which is unfortunate.

Among these four options, which seems the easiest to put in place? I'm not really knowledgeable in this area. Could one of these four options be implemented without the need for a bill? Could the four options be put in place through regulations? Do we need to amend an act to put in place one of these four options?

[Pascale Giguère]

All four options would necessitate an amendment to the Air Canada Public Participation Act. Some would require shorter amendments, whereas others would necessitate more detailed provisions.

For instance, the provisions of the enabling legislation would have to list the offences that could be sanctioned by fines. Generally, this type of provision not only lists the offences and the minimum and maximum fines, but also the mitigating or aggravating factors. For instance, if Air Canada were to commit the same offence several times, the amount of the fine could be increased.

Such a regime would not be extremely detailed in the legislation, but it would nevertheless necessitate that we adopt certain legislative provisions. With regard to the administrative monetary penalties, you would have to amend the enabling act to give the power...

[François Choquette, NDP, Drummond, QC]

Would we need to amend the Air Canada Public Participation Act, or simply change an act having to do with the commissioner?

[Pascale Giguère]

All of the legislative amendments we propose would involve the Air Canada Public Participation Act, for the simple reason that Air Canada is different from other federal institutions. Although it is subject to the Official Languages Act, it functions in a context where imperatives are of a commercial and financial nature. Other federal institutions do not necessarily have such systemic issues.

[François Choquette, NDP, Drummond, QC]

Would it be easier to opt for administrative monetary penalties than fines? Would it require fewer amendments or less clarification?