Evidence of meeting #72 for Official Languages in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was languages.
A recording is available from Parliament.
Liberal
The Chair Liberal Denis Paradis
Pursuant to Standing Order 108(3), we are beginning our study of Air Canada's implementation of the Official Languages Act, but with a few minutes' delay.
We are pleased to have Michel Thibodeau with us today.
Welcome, Mr. Thibodeau. As usual, we will allow you 10 minutes or so to tell us what you have to say about your experience with Air Canada. Then we will move on to a period of questions and comments from committee members. Please go ahead.
Michel Thibodeau As an Individual
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. ... [171] 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. ... [177] 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.
Liberal
The Chair Liberal Denis Paradis
Thank you very much, Mr. Thibodeau.
We will begin the period of questions and comments with Mr. Clarke.
Mr. Clarke, go ahead, please.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Thank you, Mr. Chair.
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.
As an Individual
Thank you for your question. I am familiar with the background to the Air Canada file and know it was previously a crown corporation. When the federal government decided to privatize it, Air Canada was already required to provide its services in both official languages. The government said that it was privatizing it but that it had to continue serving Canadians in both official languages. This matter dates back to then. I believe Air Canada must absolutely continue serving its clientele in both official languages. As to whether I would be in favour of WestJet, for example, being subject to the same regulations, I would say that would be a good sign.
I think that, for us to live as Canadians, as citizens of a country with two official languages, we must take proactive measures. I would welcome that kind of proactive measure being implemented, provided it was done over a five-year period to avoid unduly penalizing commercial companies. Companies want a certain amount of time in which to put measures in place. Transitory measures could be implemented. Whatever the case may be, the idea would be to ensure that the air carrier system became fully bilingual in 5 to 10 years. I would entirely agree with that.
I have also heard certain individuals say—and that would have been hearsay in other cases—that Air Canada should no longer have to provide its services in both official languages. I think that would be utterly absurd and unacceptable. I sincerely think that. Since I no longer work at the House of Commons, I may be somewhat partisan. I nevertheless think that a government that allowed that would be shooting itself in the foot. Canadians want to be served in both official languages. The idea is not to regress by eliminating service in both languages.
I have no objection to this bilingualism measure being applied to all airlines.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Of course, you are familiar with all the arguments and difficulties outlined by Air Canada, such as changes that must be made to airport entry doors and situations in which a bilingual employee is sick. I think the only real solution for Air Canada to meet its obligations under the act would be for all its employees, without exception, to be bilingual.
What you think of that?
As an Individual
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.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Pardon me, sir, but is institutional bilingualism sustainable in a context in which there are 45 million passengers?
As an Individual
Service is provided in both official languages in many instances, such as boarding announcements and those kinds of things. It can be done. Are there a lot of breaches? Yes.
Should we give up because it is too difficult? The answer is no. I am sure that, if Air Canada were a crown corporation managed by the government and required under the act to provide services in both official languages, the federal government would take measures to ensure it did so.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
You do not think there is a technical problem, do you?
Liberal
The Chair Liberal Denis Paradis
Thank you very much.
Now we will move on to the next speaker.
Mr. Arseneault, go ahead, please.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Thank you, Mr. Chair.
Mr. Thibodeau, thank you for being here once again. You agreed to come and see us at the last minute.
I would like to add to what my colleague Mr. Clarke said before asking his questions. I congratulate you for being so determined and for helping to shape the law with such limited resources. You may initially have had the help of lawyers to guide you, but then you became an expert in the matter, even more so than the lawyers.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I am a lawyer by profession and I admit I am impressed.
Conservative
Bernard Généreux Conservative Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC
I do not know where the Federal Court is either.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
I know exactly what jungle you were thrown into, and you have made your way through it several times. Now you do it automatically and out of patriotism for your country and its two founding peoples. That is how I see it, and I congratulate you. All Canadians must have access to Air Canada's services in both official languages for the reasons you have explained. We know what those reasons are and we know why this applies solely to Air Canada. Whatever the case may be, I congratulate you.
Do these failures on Air Canada's part to provide counter or on-board service occur more on domestic than on international flights?
Tell us about your personal experience.
As an Individual
I have observed breaches on both domestic and international flights. There seemed to be more breaches when our flight went through Toronto. I do not have any supporting evidence, but it seems to me it is more difficult in Toronto. It is more difficult in Wabush because it is located in Newfoundland and Labrador. I noted there were fewer problems when we stopped over in Montreal. In my humble experience, breaches seem to occur when aircraft fly in anglophone areas. That is where where it gets harder to obtain services in French.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
Did the problems you detected occur more at airport terminal counters or aboard aircraft?
As an Individual
Based on my experience over the past 17 years, I would say there are problems in both places. Here is a specific example.
Last week I filed a complaint that I had also filed previously. On-board emergency exits are indicated by signs that read only “exit”. That makes no sense to me. Air Canada has been subject to the act since 1969. Why, in 2017, should I as a French Canadian citizen see an emergency exit that is designated solely by the word “exit”? We know perfectly well that, if that were the case here in a federal building, it would be illegal. The same should be true for Air Canada.
People do not bother to complain because they find the process too difficult. They do not want to advance the law. It is true that that is difficult. When I travel with my wife, sometimes she looks at me and says, “Oh, not again.”
Liberal