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15 February 2012
In Thibodeau v Air Canada(1), Air Canada was ordered to take a number of remedial measures after it was found to have violated the Official Languages Act when it failed to provide bilingual services to the Thibodeaus in four instances (for further details please see "Official Languages Act trumps Montreal Convention").
Two of the remedial measures required Air Canada to "make every reasonable effort to comply with all of its duties" under the act, and to:
"introduce ... a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language duties, as set out [in the Official Languages Act], particularly by introducing a procedure to identify and document occasions on which Jazz [Air Canada's affiliate] does not assign flight attendants able to provide services in French on board flights on which there is a significant demand for services in French."
Air Canada appealed several aspects of the Federal Court's decision. It also applied to stay the compliance and monitoring orders, pending the decision on the appeal.
The issue of the stay was recently decided by the Federal Court of Appeal, which applied the usual three-part test found in the Supreme Court of Canada's decision in RJR-MacDonald Inc v Canada (Attorney General).(2) In that case the court held that a motion for stay may be granted only if the applicant demonstrates that:
On the issue of whether there was a serious question to be determined, Air Canada argued that the compliance order perpetually exposed it to the threat of contempt proceedings and, as a result, the matter was not frivolous or vexatious. The Thibodeaus and the commissioner of official languages (an intervener in the proceedings) conceded the first branch of the RJR test by noting that since charter rights and the public interest were at issue, the subject matter of the appeal was indeed serious. The court accepted these submissions and held that the first branch of the test had been satisfied. The court then turned to the issue of irreparable harm.
The court noted, from RJR, that this branch of the test refers to the nature of the harm, rather than its magnitude. The court then noted, also from RJR, that the fact that one party may be impecunious does not automatically determine the motion, although it may be a relevant consideration.
With regard to the compliance order, the court observed the vagueness of the requirements imposed on Air Canada, as well as the fact that compliance orders of this sort are almost always applied to situations where a litigant is being compelled to comply with a court order, not a piece of legislation (which does not require a court mandating compliance in order to give effect to its provisions). Because it was unclear to the court as to whether the compliance order added any additional duty to comply with the Official Languages Act, and because of the above referenced "vagueness", the court concluded that "it is preferable to stay its application until such time as the Court of Appeal rules on its merits and scope".
On the issue of the monitoring order, Air Canada had already agreed that it would comply with the wording specific to Jazz, and it did not seek to resile from doing so in the stay application. However, it did seek to stay the more ambiguous requirements imposed in the first half of that order.
Air Canada argued that, apart from the wording being unclear as to what was required, full compliance would almost certainly affect some 7,500 flight attendants and 2,600 passenger services employees working at airports in areas as diverse as:
Air Canada argued that implementing such a system-wide effort would involve a complex and irreversible process, the cost of which was difficult to quantify and, in any event, could never be repaid by the respondents.
The commissioner argued that this did not satisfy the requirement to show irreparable harm, because the evidence adduced amounted to a generality – as opposed to demonstrating "the actual existence or real probability of harm that cannot be repaired later". The court did not accept this argument and found that "the harm that Air Canada would sustain if a stay were denied is far from hypothetical". The court found that Air Canada:
"would have difficulty not only meeting the requirements of a vague order, but also, if victorious on appeal, dismantling a system that no doubt would have taken months to set up."
Finally, on the issue of "balance of convenience", the court held that the balance favoured Air Canada. It took special note of the fact that only 12 Official Languages Act complaints were made in approximately 47 million points of contact (0.0000255%) – and, in any event, implementing a monitoring system would not prevent further Official Languages Act breaches during the appeal period, but only identify them.
The stay was granted, with costs in the cause.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (firstname.lastname@example.org).
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