Thank you, Mr. Chair.
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.