Official Languages Committee on June 8th, 2017

[Pascale Giguère]

I will try to be brief.

I would not say there is a difference in terms of ease. The two systems are very different from each other. One is administered by the Federal Court, as I mentioned. There are certain provisions that set the parameters, but the court has the discretion to determine the amount of the fine, depending on the circumstances.

Administrative monetary penalties are part of a regime administered by the institution that ensures compliance with the legislation. In this case, it is administered by the Office of the Commissioner of Official Languages. It is a regime that would still require more detailed provisions, whether they are included in the act or in a regulation or policy. So there could be a document accompanying the act that would cut down the legislative amendments. However, there would have to be another document detailing the scheme.

You still need to have some details since, by their very nature, administrative monetary penalties require a certain level of predictability. In this case, Air Canada should therefore have a good idea as to—

[François Choquette, NDP, Drummond, QC]

A minimum amount, for example?

[Pascale Giguère]

Yes. Air Canada should also be able to find out when it would be subject to administrative monetary penalties, what the amount would be, and so on.

So there has to be a fairly detailed scheme, but it does not necessarily have to be in the enabling legislation.

[François Choquette, NDP, Drummond, QC]

Okay.

I know Graham Fraser is not here today to explain it, but could you tell me why you chose to propose four options instead of presenting the one you prefer? Perhaps it's the mechanism of enforceable agreements, because you’re suggesting it first.

Did you present the options in order of priority, thinking that you had to put the enforceable agreements first, because it would be a simpler and more effective solution? Do I understand the reason behind the order of the suggestions?

[Pascale Giguère]

No, there is no specific order in the way we presented them.

When we were preparing the special report, we thought about the options we wanted to present. We had the choice not to present any, but we thought it might help Parliament if the commissioner himself provided a few options. We evaluated a number of them and selected a few.

One of the reasons we chose these is that they are already in the toolbox of some officers of Parliament. So we're not asking you to look outside what has already been done with respect to officers of Parliament. It may also involve mechanisms that are already applicable to Air Canada, which would not be very different from what Air Canada already knows.

[François Choquette, NDP, Drummond, QC]

Is Air Canada already subject to the four options, or only to administrative monetary penalties?

[Pascale Giguère]

Air Canada is already subject to administrative monetary penalties.

[François Choquette, NDP, Drummond, QC]

Air Canada already is. Is that also the case for the other three options?

[Pascale Giguère]

No.

I said either that the options were in the toolbox of the officers of Parliament or that there were mechanisms to which Air Canada was subject. Air Canada is not subject to enforceable agreements.

[François Choquette, NDP, Drummond, QC]

So are the AMPs the only tool Air Canada is subject to? It is familiar with the tool, then.

[Pascale Giguère]

Absolutely.

[François Choquette, NDP, Drummond, QC]

As for the other options, they are used by other institutions.

[Pascale Giguère]

Yes, other institutions use the different options.

[The Chair, Liberal, Denis Paradis]

Thank you very much, Mr. Choquette.

[François Choquette, NDP, Drummond, QC]

Thank you, Mr. Chair.

[The Chair, Liberal, Denis Paradis]

Mr. Arseneault, the floor is yours.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Thank you, Mr. Chair.

I will be sharing my time with Mr. Picard.

My thanks to the witnesses for being here. It is very interesting and it is a fine document. This will be my “bible” for the weekend. I will try to come to grips with it and have it at my fingertips.

When we began the study on Air Canada, I was fairly impartial. I wanted to know all the ins and outs of Air Canada. However, I still remember the appearance of the president and CEO and his way of looking at things, which I would call cavalier and unconcerned about the seriousness of the complaints. That's the image that stayed with me.

I followed on the website the adventures of Mr. Thibodeau, one of the complainants challenged by Air Canada. He took up the challenge. I heard a lot of evidence. In addition, last week or the week before, Transport Canada officials basically told us that Air Canada was pressing hard to remove the requirement of compliance with the official languages. That was my understanding. I may have misunderstood, but frankly, my opinion is starting to be tainted by Air Canada's goodwill, or lack thereof, to fully comply with the Official Languages Act.

I do understand, however, that the number of complaints—as Air Canada put it—should be put in context: how many passengers are there and how many complaints are there? There are a lot of passengers, there are thousands and thousands of passengers a year, but the number of complaints is much lower.

In spite of that, I very much appreciate your suggestions for deterrents. Coercively, we are trying to force someone to honour their commitments, agreement or contract. These disincentives are truly interesting. There are four of them and a mix of the four would also be perfect.

I do not have an opinion on the order of precedence, but have you considered the possibility that, if administrative monetary penalties were imposed on Air Canada, the costs incurred by the complainants would be reimbursed? In any case, for complainants, it is complicated to complain. I was a lawyer, and justice is often very just, for those who can afford it.

To file a complaint from New Brunswick, Cape Breton, Vancouver or northern Saskatchewan, you have to go through the federal courts. That is a significant cost. It is probably included in the administrative monetary penalties.

[Pascale Giguère]

Of course, private companies always tend to pass on the operating costs to the customers. If Air Canada were subject to administrative monetary penalties, they may end up in the operating costs. We have no real control over that.

However, there would be an advantage. Private institutions are in fact often very aware of the financial risks they incur. When they have to make choices and to follow priorities, they often avoid doing things that involve financial costs. Lawyers who advise private companies often advise them, given two choices, not to make the choice that would have financial consequences.

Despite the fact that what you are saying might materialize, a mechanism such as administrative monetary penalties is effective because, ultimately, it has financial consequences. This usually discourages private institutions from doing something that would harm the profits they might otherwise be making.

Hiring bilingual staff can be expensive for Air Canada, but, if the company has a choice between hiring bilingual staff and paying administrative monetary penalties, it will probably choose the method that will cost the least.

This may discourage a federal or private institution from continuing to behave in a way that prevents it from saving money.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Let me look at it from the complainant's point of view.

In my practice, even when people had the right to file a complaint against any organization, I would say that arbitrarily 70% did not because they did not have the energy or the means to pay even $100 for small claim and $1,500 in legal fees, for example.

[The Chair, Liberal, Denis Paradis]

Mr. Arseneault, let me stop you there. You said you were sharing your time with Mr. Picard.

Mr. Picard, you have the floor for six minutes.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

Can we evaluate the 101 complaints against the total number of passengers? To give us an idea, do you have the number of complaints for the anglophone service and the francophone service?

[Jean Marleau]

Not really.

[Michel Picard, Liberal, Montarville, QC]

I would like to talk about the approach of imposing damages or administrative monetary penalties. In business, it's all about the bottom line.

If we imposed fines on the company, what would be the consequences? Would it pass those costs on to customers?

[Pascale Giguère]

The objective is to ensure that there are fewer and fewer violations of the act and that it is less and less necessary to impose administrative monetary penalties or fines. It is a deterrent because there are consequences.

According to Air Canada's history of bilingual services and to what Commissioner Fraser says in his special report, the same complaints keep coming back year after year. The first commissioners of official languages reported the same complaints in their annual reports. In the last year of Commissioner Fraser's term, it was basically the same complaints.

Imposing fines may prevent such situations from going on for more than 25 years.

[Michel Picard, Liberal, Montarville, QC]

In that case, might Air Canada increase the price of its tickets by $5, in order to set up a fund to cover the costs of settling any potential complaints? Ultimately, the customers would pay.