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Charter - Damages (4). St. John's International Airport Authority v. Thibodeau [damages]
In St. John's International Airport Authority v. Thibodeau (Fed CA, 2024) the Federal Court of Appeal dismissed an Airport's appeal, this from a successful OLA [s.77] statutory remedy (damages) application.
Here the court considers the statutory remedy (damages) issue, which - although they were not Charter damages - the court treated under that doctrine (Ward):D. Did the Federal Court err in the award of damages?
[79] Courts have consistently held that subsection 77(4) of the OLA confers broad discretion on the judge to grant a remedy when a federal institution breaches one of its obligations under the OLA.
[80] Subsection 77(4) of the OLA reads as follows:Order of Court
Ordonnance
77(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.
77(4) Le tribunal peut, s’il estime qu’une institution fédérale ne s’est pas conformée à la présente loi, accorder la réparation qu’il estime convenable et juste eu égard aux circonstances. [81] The Supreme Court has recognized that subsection 77(4) of the OLA is similar to subsection 24(1) of the Charter in that it "“confers a wide remedial authority and should be interpreted generously to achieve its purpose”" (Thibodeau 2014 at para. 112).
[82] An award of damages in the event of the breach of a protected Charter right is governed by the framework developed by the Supreme Court in Ward. In that case, the Supreme Court established that a claimant need not establish personal harm to be entitled to damages "“where the objectives of vindication or deterrence clearly call for an award”" (Ward at para. 30).
[83] SJIAA does not question the application of the analytical framework developed in Ward to subsection 77(4) of the OLA. However, SJIAA submits that the Federal Court did not have the discretion to award damages to Mr. Thibodeau because he was not a member of the travelling public and therefore suffered no personal violation of his rights. SJIAA nevertheless makes a qualification: in paragraph 81 of its memorandum of fact and law, it concedes that its argument does not cover confirmed "“head office”" violations under section 22 of the OLA and that such violations could open the door to an award of damages.
[84] Whatever the case may be, SJIAA cites several decisions in support of its argument that the Federal Court erred in awarding damages to Mr. Thibodeau when he had not personally suffered a violation of his rights or any harm. These decisions, however, do not support its argument in this case.
[85] First, in Brunette v. Legault Joly Thiffault, s.e.n.c.r.l., 2018 SCC 55, [2018] 3 S.C.R. 481 (Brunette), a judgment relating to the fundamental principles of procedural and corporate law, the Supreme Court states that a shareholder must establish a breach of a distinct obligation and direct injury to obtain a distinct right of action separate from that of the corporation against which the faults were committed (Brunette at paras. 28 and 29). Relying on this statement, SJIAA affirms that it is impossible for Mr. Thibodeau to obtain damages because he has personally suffered no violation and no prejudice of his rights (SJIAA’s memorandum of fact and law at para. 74). SJIAA’s argument misses the mark. Unlike in Brunette, subsection 77(1) of the OLA specifically confers a right of action on Mr. Thibodeau. Mr. Thibodeau therefore has the standing to act, which opens the door to a claim for damages.
[86] The other decisions cited by SJIAA, namely, Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214, Canson Enterprises Ltd. v. Boughton & Co., 1991 CanLII 52 (SCC), [1991] 3 S.C.R. 534 and Ratych v. Bloomer, 1990 CanLII 97 (SCC), [1990] 1 S.C.R. 940, do not deal with the principles specific to awards of damages as a remedy under the Charter or the OLA. They are therefore of no assistance in challenging the award of damages in this case.
[87] In actual fact, SJIAA seeks to advance an unduly narrow concept of standing to act under section 77 of the OLA. Not only is this concept irreconcilable with the case law of the Supreme Court and of this Court (DesRochers; Forum des maires de la Péninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263, [2004] 4 F.C.R. 276 (Forum des Maires), it also goes against the very spirit of the primary purpose of the OLA in terms of the protection of language rights. It would render illusory the remedy that Parliament contemplates under the OLA, in particular the award of damages, as the Federal Court rightly observes in paragraph 84:Indeed, sections 22 and 23 of the [OLA] do not affirm a right, but rather a duty for federal institutions to ensure that members of the public or the travelling public … can communicate with and obtain available services from federal institutions in either official language. This duty is owed to the general public or all members of the travelling public. … [I]n most situations, the measures federal institutions must take to comply with the [OLA] benefit all members of the public or all members of the travelling public. In light of this, and given that it is recognized that most breaches of the [OLA] do not cause compensable injury, the narrow view of standing put forward by SJIAA would make it practically impossible to award damages and discourage parties from resorting to section 77. ... [I]t would take away the [OLA]’s bite. [88] In short, the Federal Court did not err in recognizing that Mr. Thibodeau could be awarded damages for OLA breaches by SJIAA. In this case, the issue that must now be addressed is whether the Federal Court’s exercise of its discretion to award $5,000 in damages to Mr. Thibodeau was an appropriate and just remedy in the circumstances.
A. Did the Federal Court grant an "“appropriate and just”" remedy?
[89] As both this Court and the Supreme Court have noted, the remedy in subsection 77(4) of the OLA was included to give the OLA some "“teeth”" (Forum des Maires at para. 17) and "“to enforce, through remedies, certain parts of the new OLA, in contrast to its predecessor that was merely declaratory”" (Thibodeau 2014 at para. 115). Because the remedy in subsection 77(4) of the OLA can now be considered akin to the remedy under subsection 24(1) of the Charter, the analytical framework developed in Ward must be applied to establish an "“appropriate and just”" remedy. This is also the approach the Federal Court adopted in this case, modelling it on other Federal Court decisions where damages were awarded as a remedy for breaches of the OLA (see Thibodeau v. Air Canada, 2019 FC 1102; Thibodeau v. Canada (Senate), 2019 FC 1474; Thibodeau v. Greater Toronto Airports Authority, 2024 FC 274).
[90] The analytical framework developed by the Supreme Court in Ward can be broken down to four steps, which can be summarized as follows:1. Proof of a breach of a provision of the OLA;
2. Demonstration that an award of damages serves a useful function or goal, based on the following functions:
(i) compensation of injury suffered by the claimant;
(ii) vindication of language rights;
(iii) deterrence of any future breach.
3. The consideration of countervailing factors rendering an award of damages neither appropriate nor just;
4. The determination of the appropriate quantum of damages, if awarded. [91] Although the Federal Court established in this case that SJIAA breached sections 22 and 23 of the OLA, the breach of the OLA is not in itself a determining factor in the official languages context, since the personal loss caused by the breach is harder to pinpoint (Decision at para. 75). A breach of the OLA has collective and systemic repercussions that go far beyond an individual breach, as it thwarts and limits the development of official language communities (Beaulac at para. 25).
[92] In the context of this type of violation of language rights, the objectives of vindication and deterrence play an even greater role. As the Federal Court notes, "“[a]n award that focuses only on personal loss may well neglect the real impacts of a breach of the [OLA]. In most cases therefore, the award of damages will focus on vindication of the right and deterrence”" (Decision at para. 76).
[93] As for the vindication of rights, damages may be appropriate to the extent that a federal institution’s breach of the OLA undermines the status of official language communities. As the Supreme Court affirms in Mazraani at paragraph 51:... language rights have a systemic aspect and … the individual right also exists in favour of the community. A violation that seems minor at a personal level will nonetheless have some weight simply because it contributes to putting a brake on the full and equal participation of members of official language communities in the country’s institutions and undermines the equality of status of the official languages. [94] Therefore, the award of damages by the Federal Court not only ensures respect for the language rights at issue, but it also serves as a reminder of the significance of the obligations towards the official language communities that are incumbent on federal institutions under the OLA.
[95] Regarding the objective of deterrence, the Federal Court reiterated that SJIAA had breached a right by failing to comply with its obligations under sections 22 and 23 of the OLA. Before this Court, SJIAA argues that Mr. Thibodeau did not suffer personal loss and therefore could not claim damages. It submits this argument despite the Supreme Court’s statement in paragraph 30 of Ward that an award of damages is not necessarily related to personal loss:... the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award. [96] In this respect, it should be recalled that, in 2004, this Court, in the same spirit that informed the principles in Ward, recognized that a remedy under section 77 "“may be undertaken by a person or a group, which may not be ‘directly affected by the matter in respect of which relief is sought’”" (Forum des Maires at para. 18). Basing itself on the principles in Ward, the Federal Court rightly noted that the vast majority of OLA breaches do not cause inherently compensable injury (Decision at para. 88).
[97] Moreover, given that the COL’s recommendations are not binding, any narrow interpretation of subsection 77(4) of the OLA like the one put forward by SJIAA would thwart the application of the provision, rendering it for all intents and purposes futile. As the Federal Court pointed out, the interpretation put forward by SJIAA is "“incompatible with the structure of the [OLA]”" (Decision at para. 83). Furthermore, Parliament certainly did not enact subsection 77(4) of the OLA with the intention that it have no practical effect.
[98] In this case, the Federal Court concluded, on the basis of the evidence adduced before it, that SJIAA’s conduct appeared to minimize its efforts to comply with the OLA in a way that respects the value of bilingualism. The Federal Court noted that "“SJIAA chose to ignore some of the Commissioner’s recommendations”" and that "“SJIAA has complained about the cost of its efforts to enter into partial compliance with the Act”" (Decision at paras. 86 and 87). When faced with an institution’s resistance to meeting its language obligations under the OLA, the courts have a duty to reassure not only official language minorities but also the public about the importance of ensuring compliance with the OLA. In this case, a declaratory judgment would have been insufficient. A more appropriate remedy, namely, an award of damages, was needed to respond to SJIAA’s clear lack of interest in complying with its obligations under the OLA.
[99] As for the countervailing factors against an award of damages, the Federal Court acknowledged at the outset that SJIAA took some corrective measures and remedied certain OLA violations, but observed that these efforts were ultimately insufficient to act as a counterweight to persistent breaches. For example, drawing on the 2021 COL report, the Federal Court highlighted the marked disparity between the English and French content on the Instagram and YouTube accounts. Similarly, certain sections of SJIAA’s website were exclusively in English (Decision at paras. 86, 91–92). The Federal Court also relied on the affidavit of one of SJIAA’s managers, who essentially minimized the scope of SJIAA’s language duties and presented criticism of the COL report that had "“no basis whatsoever”" (Decision at paras. 92 and 93). Ultimately, SJIAA ignored most of the COL’s recommendations and incorrectly dealt with language rights as an accommodation measure as opposed to a legal obligation that it owed, which must be given true meaning (DesRochers at para. 31).
[100] Since SJIAA did not take necessary corrective measures, it cannot assert that the situation changed between the time the complaint was filed and the time the Federal Court rendered its decision, and that "“relief that might have been appropriate at the outset may no longer be so at the end of the exercise”" (Forum des Maires at para. 62). Quite the contrary, hence the relevance of the award of damages in this case.
[101] Ultimately, SJIAA submits that the Federal Court erred in determining the same amount of damages, i.e. $5,000, as that awarded in the related decision in Thibodeau v. Edmonton Regional Airports Authority, 2022 FC 565 (Edmonton). According to SJIAA, the facts in this case can be distinguished from those in Edmonton and the Federal Court therefore erred in awarding identical damages of $5,000 in both cases (SJIAA’s memorandum of fact and law at paras. 98 and 99).
[102] However, it is clear from a reading of the reasons of the Federal Court that it assessed the seriousness of the breaches on a case-by-case basis, in accordance with the facts specific to each matter. More specifically, in the case before us, contrary to SJIAA’s argument, the Federal Court considered mitigating factors such as SJIAA’s implementation of some of the COL’s recommendations, while at the same time recognizing that SJIAA had partially—albeit insufficiently—corrected some of the problems by addressing some of Mr. Thibodeau’s complaints.
[103] It is important to note that the Federal Court also correctly rejected any method that would award a fixed amount of damages for each complaint based on how the claimant had chosen to divide them. Rather, it considered the circumstances as a whole to determine an amount for all the complaints. The Federal Court’s approach was entirely well founded. I would add that any approach that awards a fixed amount for each complaint a claimant may file is unacceptable. Thus, in light of the circumstances as a whole, the Federal Court took into account the modicum of effort SJIAA had made but decided that it was insufficient to serve as a counterweight to the need to award Mr. Thibodeau $5,000 in damages "“in order to ensure deterrence and vindication”" (Decision at paras. 91 and 94). No error was committed in this respect, and there is therefore no reason to intervene. . Edmonton Regional Airports Authority v. Thibodeau
In Edmonton Regional Airports Authority v. Thibodeau (Fed CA, 2024) the Federal Court of Appeal dismissed an Authority defendant appeal, this from a successful Federal Court action, here regarding $5,000 "damages awarded by the Federal Court under subsection 77(4) of the OLA" as a "remedy for ERAA’s violations of the Official Languages Act".
Although this was not apparently pled as a Charter damages case, the court applied a leading Charter damage case of Vancouver (City) v. Ward (SCC, 2010) to OLA s.77(4):III. FEDERAL COURT DECISION
[11] After hearing Mr. Thibodeau’s application under the OLA, the Federal Court noted that the only real issue it had to decide concerned damages, and specifically whether they were appropriate and just. As it had done in Thibodeau v. St. John’s International Airport Authority, 2022 FC 563 (St. John’s FC), the Federal Court applied the four-step analysis developed by the Supreme Court in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 (Ward), adapting it to the context of the OLA (at para. 4):The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. [12] Since ERAA had acknowledged that Mr. Thibodeau’s complaints were founded, the Federal Court immediately found that the first step in the analysis developed by the Supreme Court in Ward, i.e., the breach, was established.
[13] The Federal Court then addressed the second step, which requires identifying the objectives of an award of damages. It found that the circumstances of this case were similar to those in St. John’s FC and that "“the award of damages fulfills the same functions”" (Decision at para. 20). It then found that an award of damages against ERAA was necessary to help "“fulfill the other two functions ""established in ""Ward"", namely, vindication of [language] rights and deterrence”" (Decision at para. 22). The Federal Court added that "“[a] concrete sanction is necessary to remind ERAA and other federal institutions of the need to comply with the [OLA] and to reassure the public of the importance of language rights”" (Decision at para. 22).
[14] The Federal Court went on to assess the countervailing factors that could defeat the functional considerations that support a damage award and render damages inappropriate or unjust. It rejected ERAA’s claims that Mr. Thibodeau had developed a strategy to "“commodify”" language rights. The Court characterized ERAA’s accusations as "“outrageous”" and recognized the "“enormous personal investment required to pursue an application under section 77 of the [OLA]”" (Decision at paras. 26 and 28). According to the Federal Court, the monetary aspect and the sums Mr. Thibodeau received "“cannot overshadow the immense personal investment he has made in the defence of language rights”" (Decision at para. 29).
[15] The Federal Court also rejected ERAA’s argument that it would be more judicious to allow it to preserve its financial resources to remedy OLA violations instead of requiring it to pay damages to Mr. Thibodeau (Decision at para. 33).
[16] Ultimately, given the lack of evidence, the Federal Court did not accept ERAA’s submission that it had complied with its language obligations under the OLA by the time of the hearing (Decision at paras. 34 and 35).
[17] As a result, the Federal Court assessed the quantum of damages at $5,000, an amount lower than what Mr. Thibodeau was seeking. To determine the amount, the Court considered all the circumstances and the factors demonstrating the seriousness of the breaches at issue, while also taking the mitigating factors into account (Decision at paras. 38 and 39).
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(2) Did the Federal Court err in finding that an award of damages was an appropriate and just remedy?
[20] An award of damages is deemed appropriate and just to the extent that it vindicates a right and deters future breaches by state actors (Ward at paras. 24 and 25). In this case, the Federal Court relied on the evidence in the record and was convinced that a damage award was necessary "“to vindicate language rights and to achieve deterrence”" (Decision at paras. 17 and 22).
[21] More specifically, concerning the objective of the vindication of language rights, the Federal Court noted that ERAA was subject to Part IV of the OLA respecting communications with and services to the public. Mr. Thibodeau’s complaints targeted ERAA’s digital platforms and slogans at the airport, which were primarily or exclusively in English. As for the additional complaints Mr. Thibodeau filed after this application, section 79 of the OLA allows the Federal Court to consider them in its assessment of the situation at issue. This OLA provision states that "“information relating to any similar complaint”" against the same federal institution may be submitted as evidence, so that the Court can have an overall view and thus an idea of the scope of the problem over a defined period of time (Canada (Commissaire aux langues officielles) v. Air Canada, 1999 CanLII 8095 (FCA), 167 F.T.R. 157 at para. 13).
[22] In this case, the additional complaints filed by Mr. Thibodeau, the merits of which remain to be determined, generally tend to show that a problem exists within several airport authorities throughout Canada, such as the one in St. John’s (St. John’s FC and St. John’s FCA). More specifically, they appear to show that the breaches Mr. Thibodeau identified in his initial complaints against ERAA were not settled and that the COL’s recommendations were not followed, calling into question the sincerity of ERAA’s apology to Mr. Thibodeau in 2020, in which it had stated that action had already been taken [translation] "“to implement the COL’s recommendations”" (Appeal Book at 691).
[23] Regarding the objective of deterrence, it is sufficient to note that Mr. Thibodeau’s initial and additional complaints, combined with ERAA’s indifference to the COL’s recommendations, justify a damage award to ensure that airport authorities take their language obligations under the OLA seriously. No palpable and overriding error in the Federal Court’s reasoning has been demonstrated in this respect.
[24] ERAA also faults the Federal Court for awarding the same amount of damages in this case as it did in St. John’s FC, namely, $5,000. ERAA’s reasoning can be summarized as follows: the Federal Court erred in awarding the same amount of damages in each case because it failed to perform an [translation] "“independent analysis of the facts in this case”" (ERAA’s memorandum of fact and law at para. 48).
[25] The Federal Court knew that St. John’s FC and this case are related. Therefore, it is not incongruous that it referred to St. John’s FC in this matter, especially since both cases concern breaches of section 22 and 23 of the OLA by the airport authorities in issue. In both cases, the Federal Court awarded damages based on the same objectives, namely, the vindication of language rights and deterrence. Although the Federal Court awarded an identical amount of damages in both cases, the fact remains that it based its decisions on the facts and the evidence specific to each. At paras 28-37 the court assesses other vigorous arguments against the damages remedy.
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