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Language - Official Languages Act (OLA) (2). St. John's International Airport Authority v. Thibodeau
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 interprets OLA s.23 ['Travelling public']:C. Did the Federal Court err in its interpretation of section 23 of the OLA?
[67] Before the Federal Court, SJIAA advanced an interpretation of the term "“travelling public”" in section 23 of the OLA that included only individuals holding travel documents (e.g., airplane tickets). It also proposed a limited notion of the information and communications that are traveller-relevant.
[68] The Federal Court rejected the interpretation of section 23 of the OLA proposed by SJIAA, finding that the meaning of the term "“travelling public”" should not be limited to individuals who hold a travel document, and that the services and communications contemplated by section 23 of the OLA are not those that are "“traveller-relevant”" but those that are offered or intended for the travelling public, "“in the sense that the recipients or beneficiaries of the services or communication are all or mainly members of the travelling public”" (Decision at para. 49).
[69] Before this Court, SJIAA submits that the Federal Court erred in its interpretation of section 23 of the OLA. SJIAA now asserts that the interpretation of the term "“travelling public”" should be limited to travellers using airports to fly from one point to another (SJIAA’s memorandum of fact and law at paras. 67 and 68). This interpretation proposed by SJIAA is without merit. For the reasons below, the interpretation adopted by the Federal Court should be upheld because the one advanced by SJIAA is unduly narrow and inconsistent with the principles set out by the Supreme Court in language rights cases since Beaulac.
[70] Whether the provision being interpreted is subsection 4(1) of the ATA or section 23 of the OLA, the approach remains the same (Rizzo). It is important to remember, however, that the meaning of "“travelling public”" and the range of services and communications intended for that group under section 23 of the OLA must be interpreted consistently with the purpose of the OLA, which is to promote the preservation and development of official language communities (Beaulac at para. 25; DesRochers at para. 31).
[71] This is in fact the interpretive approach favoured by the Federal Court in this case. It properly set out the objectives of the OLA sought by Parliament in the specific context of the travelling public, as follows:[47] The purpose of the [OLA] is to enhance the vitality of official language communities and to advance the equality of use of English and French throughout the country. To achieve these objectives, Canadians should be able to travel across the country while receiving services in the language of their choice. For this reason, the significant demand criteria for section 23 take into account not only the local population, but also the airport’s volume of passenger traffic and the fact that at least one airport in each province or territory should offer services in both languages. A generous interpretation of section 23 should therefore be preferred so as to ensure, as much as possible, that members of the travelling public can travel in the official language of their choice. [72] In light of the wording of section 23 of the OLA, it is clear that federal institutions have language obligations in respect of the services they offer—in this case, to the travelling public. Although the term "“services”" in section 23 of the OLA is not defined, if the significant demand criterion is met under section 7 of the Official Languages Regulations, as it is in the case of St. John’s airport, the travelling public as service recipients are entitled to receive communications in either of the two official languages. The Federal Court makes the following relevant point at paragraph 48 of the Decision:... The focus is on the recipient of the service or communication, i.e. the travelling public, and not on the nature of the service or the content of the communication. There is nothing in this wording to suggest that it refers only to services or communications that are necessary or useful for travel or that are related to transportation. [73] Along the same lines, this Court recently noted in Canada (Commissioner of Official Languages) v. Office of the Superintendent of Financial Institutions, 2021 FCA 159, [2022] 1 F.C.R. 105, that an unduly narrow interpretation of the OLA "“is contrary to the objectives of language rights”" (para. 46). That case concerned the interpretation of a provision in Part V of the OLA that confers the right to work in one’s official language of choice. This Court stated that it is important to avoid imposing "“ambiguous and arbitrary”" criteria on the exercise of a right under the OLA because such criteria "“arbitrarily restricts the scope of [the OLA] in a manner contrary to the necessary broad, liberal and purposive interpretation”" (para. 79).
[74] The narrow interpretation SJIAA proposes offends not only the principles in the case law on official languages since the seminal decision in Beaulac, but also the Official Languages Regulations, which apply section 23 of the OLA. Specifically, section 7 of the Regulations takes several factors into consideration to establish "“significant demand”", and Parliament specifically chose the term "“passenger”" to this end. It is self-evident that passengers have travel documents because, by definition, they have "“emplaned and deplaned … at that airport”" / "“""embarqué et débarqué à l’aéroport""”". It follows that the word "“passenger”" in the Official Languages Regulations is narrower than the term "“travelling public”" in section 23 of the OLA. In this respect, access by members of the travelling public to communications and services in the official language of their choice cannot be limited to those who possess a travel document or those travelling from one airport to another. If Parliament had wanted to limit access to communications and services in the official language of choice under section 23 of the OLA this way, it would have used the more restrictive "“passenger”"—as it did in the Official Languages Regulations—and not "“travelling public”", which has a broader definition and scope.
[75] This conclusion is all the more inevitable because the experience of travelling begins before emplaning and ends after deplaning. If access by the travelling public to communications or services in the minority language had to depend on a travel document or on travel from one airport to another, there would be a marked inequality between the services and communications offered to members of the travelling public from the majority community and those from the minority community (Mr. Thibodeau’s memorandum of fact and law at para. 52). Requiring a member of the travelling public to present a travel document or to be flying from one airport to another in order to obtain communication or service in the official language of their choice imposes an additional burden that would limit the ability of members of linguistic minorities to plan and go on trips.
[76] SJIAA takes particular issue with paragraph 51 of the Federal Court Decision and with its reasoning behind its statement that a person who does not have travel documents can still receive communications and services in the minority language, for example when they go to the airport to "“pick up family members”" (SJIAA’s memorandum of fact and law at para. 63). SJIAA submits that, in making such a statement, the Federal Court unduly expanded the definition of "“travelling public”". Without providing an opinion on the merits of the example chosen by the Federal Court, I find that, upon reading the decision as a whole, the remarks of the Federal Court merely illustrate that the notion of the travelling public cannot be defined only by those who hold a travel document, in that a member of the travelling public should not be required to present a travel document to obtain services or communications in their language of choice.
[77] In short, the interpretation adopted by the Federal Court is supported by the object of the OLA and the wording of section 23 of that Act: access to communications and services in the minority official language is not limited to those holding a travel document or to those travelling from one airport to another. These individuals are a segment of the intended public targeted by the communications or services at issue. The travelling public need not constitute the entire target public. As long as they are targeted, which is the case with most communications and services provided by an airport authority and its offices, they fall under section 23 of the OLA. My colleague’s comment on this issue at paragraph 139 of her dissenting opinion imposes non‑exhaustive criteria on a right under the OLA that limits its scope, whereas the Federal Court took pains to define the scope of section 23, emphasizing that, in principle, communications not intended for or not seen by the travelling public—for example, communications relating to "“the internal affairs of an airport authority or to relations with its suppliers or airlines”"—are not covered by section 23 (Decision at para. 52). In fact, it may be added that, all things being equal, the communications not covered by section 23 will be limited, given the mission and the very nature of an airport authority’s activities. . St. John's International Airport Authority v. Thibodeau
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 sets out the "process leading to the recognition of the official languages of Canada", including the passage and revision of the OLA - leading to the issuance of the leading Beaulac (SCC, 1999) case:VI. PRELIMINARY REMARKS ON LANGUAGE RIGHTS IN CANADA
[27] The process leading to the recognition of the official languages of Canada began in the 1960s with the Royal Commission on Bilingualism and Biculturalism, which set out the following vision of Canada’s two official languages, French and English (Canada, Report of the Royal Commission on Bilingualism and Biculturalism. General Introduction, Book I: The Official Languages (Ottawa: Privy Council Office,1967) at 93):The administration in Ottawa must be able to communicate adequately with the public in both languages. All government publications, as well as forms and notices, must be simultaneously available in either language. Federal government offices and Crown corporations across the country must be able to deal with people in either French or English. For example, in the immigration and customs offices at all ports of entry, in important transportation terminals, on Canadian National’s trains, and on Air Canada’s airplanes—everywhere, even in the completely unilingual sections of the country, where there is contact with the travelling public—services should be available in both languages as a matter of course. [28] The work of the Commission subsequently led to the enactment of the OLA in 1969. Thus, it was 55 years ago when French and English were enshrined as the official languages of Canada by the OLA. The statute also conferred on the Office of the Commissioner of Official Languages the task of overseeing compliance by federal institutions with their language obligations set out in the OLA.
[29] Upon the patriation of the Constitution of Canada in 1982, language rights were constitutionally enshrined through sections 16 to 20 and 23 of the Charter, which contain various language guarantees for Canadians that are binding on the federal government.
[30] The OLA was overhauled in 1988, nearly 20 years after its first version, to modernize it in light of the new language rights under the Charter. That same year, the Supreme Court of Canada affirmed that language rights are fundamental rights (R. v. Mercure, 1988 CanLII 107 (SCC), [1988] 1 S.C.R. 234 at 268). It is important to note that the OLA was recently amended in 2023, but after the decision of the Federal Court. That version is therefore not at issue in this appeal.
[31] In any event, in the 1991 decision of this Court in Canada (Attorney General) v. Viola, 1990 CanLII 13036 (FCA), [1991] 1 F.C. 373 (Viola), quasi-constitutional status was conferred on the OLA because of the nature of the rights it protects. Viola was later cited with approval by a unanimous Supreme Court in Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773 (Lavigne); see also Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340 (Thibodeau 2014).
[32] Nevertheless, it should be noted that, in its first post-Charter decisions involving the interpretation of language rights, the Supreme Court of Canada took a narrow approach, emphasizing that language rights were born of "“political compromise”". Based on this approach, language rights had to be addressed "“with more restraint”" than other Charter rights such as those under section 7, for example (Société des Acadiens v. Association of Parents, 1986 CanLII 66 (SCC), [1986] 1 S.C.R. 549 at paras. 63, 64 and 65). The Supreme Court continued to apply the narrow approach for more than a decade, but it has since abandoned it in favour of a more generous interpretation of language rights in Canada.
[33] In 1999, the Supreme Court changed course, advocating a broad and generous approach, so that language rights may be interpreted "“purposively, in a manner consistent with the preservation and development of official language communities in Canada”" (R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768 at para. 25 (Beaulac)). Beaulac marked a turning point in the interpretation of language rights by the courts in subsequent years (Michel Doucet, Michel Bastarache & Martin Rioux, "“Les droits linguistiques : fondements et interprétation""”" in Michel Bastarache & Michel Doucet, eds., Les Droits linguistiques au Canada, 3rd ed. (Cowansville, Que.: Yvon Blais, 2013) at 62).
[34] Since then, the case law of the Supreme Court has resolutely followed the legal reasoning developed in Beaulac and reaffirmed the principle of the broad and generous interpretation of language rights that courts must adopt. Accordingly, it has been established that language rights are not frozen in a historical context and, to the extent that a restrictive interpretation is sought, it is to be rejected (Beaulac at para. 25; see also Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] S.C.R. 3; Charlebois v. Mowat, 2001 NBCA 117; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1 S.C.R. 194 (DesRochers); Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261 (Mazraani); Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195).
[35] The interpretation of the relevant legislative provisions in this case will therefore follow the teachings of the Supreme Court in language rights cases since the seminal decision in Beaulac. . St. John's International Airport Authority v. Thibodeau
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 illustrates OLA complaint procedures and activities in this case:[1] The conclusions reached in this appeal illustrate the broad and generous interpretation that must be given to the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA) and related legislation to protect the official languages of Canada. Any unduly restrictive interpretation of language obligations that a federal institution might put forward is outdated and cannot be accepted.
[2] This case concerns an application by Mr. Michel Thibodeau (the respondent) before the Federal Court seeking remedies under section 77 of the OLA on the grounds that St. John’s International Airport Authority (SJIAA) breached its language obligations under that Act. Mr. Thibodeau’s application follows the complaints he filed against SJIAA with the Commissioner of Official Languages (COL), who concluded there had been a violation of sections 22 and 23 of the OLA with respect to the language of communications and services. Mr. Thibodeau, representing himself before the Federal Court, submitted that SJIAA had failed to comply with its language obligations under Part IV of the OLA by communicating in English only on social media and failing to ensure that its website is fully bilingual. Mr. Thibodeau sought various remedies before the Federal Court, including a declaratory judgment, damages, and a letter of apology.
[3] On April 21, 2022, the Federal Court, per Grammond J., ruled in Mr. Thibodeau’s favour, finding that SJIAA had violated its language obligations and consequently awarding him $5,000 in damages (2022 FC 563) (Decision). SJIAA, dissatisfied with the Federal Court’s judgment, has appealed to this Court.
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A. Mr. Thibodeau’s complaints under the OLA
[8] The origin of these proceedings are six complaints filed with the COL by Mr. Thibodeau in January 2018 under section 58 of the OLA. They concern (i) SJIAA’s social media accounts, (ii) SJIAA’s website, (iii) SJIAA’s press releases, (iv) documents SJIAA published on its website, (v) SJIAA’s Twitter account, and (vi) the automated teller machines (ATMs) located at St. John’s International Airport.
[9] It is admitted that Mr. Thibodeau observed the violations he alleges against SJIAA while doing online research, specifically on SJIAA’s website, on its social media accounts, and in photos that travellers had posted online. In paragraph 14 of the Decision, the Federal Court cites Mr. Thibodeau’s criticisms of SJIAA in order to outline the violations:. having an exclusively English presence on social media such as Facebook, YouTube and Instagram;
. having a website with an English-only URL and of which the French version was not of equal quality to the English;
. publishing its press releases in English only;
. making certain documents on its website, including its annual reports and master plan, available in English only;
. posting content on Twitter almost exclusively in English; and
. having certain signs on ATMs in the airport only in English. [10] Subsequently, Mr. Thibodeau’s complaints were the subject of two reports by the COL, one on the complaint relating to the ATMs at the airport, the other on the complaints relating to SJIAA’s communications. As these complaints invoke sections 22 and 23 of the OLA, it is appropriate to reproduce these provisions here:PART IV
PARTIE IV
Communications with and Services to the Public
Communications avec le public et prestation des services
Communications and Services
Communications et services
...
[...]
Where communications and services must be in both official languages
Langues des communications et services
22 Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language
22 Il incombe aux institutions fédérales de veiller à ce que le public puisse communiquer avec leur siège ou leur administration centrale, et en recevoir les services, dans l’une ou l’autre des langues officielles. Cette obligation vaut également pour leurs bureaux — auxquels sont assimilés, pour l’application de la présente partie, tous autres lieux où ces institutions offrent des services — situés soit dans la région de la capitale nationale, soit là où, au Canada comme à l’étranger, l’emploi de cette langue fait l’objet d’une demande importante.
Travelling public
Voyageurs
23(1) For greater certainty, in addition to the duty set out in section 22, every federal institution that provides services or makes them available to the travelling public has the duty to ensure that any member of the travelling public can communicate with and obtain those services in either official language from any office or facility of the institution in Canada or elsewhere where there is significant demand for those services in that language.
23(1) Il est entendu qu’en plus de l’obligation prévue à l’article 22, il incombe aux institutions fédérales offrant des services aux voyageurs de veiller à ce que ceux-ci puissent, dans l’une ou l’autre des langues officielles, communiquer avec leurs bureaux et en recevoir les services, là où, au Canada comme à l’étranger, l’emploi de cette langue fait l’objet d’une demande importante.
Services provided pursuant to a contract
Services conventionnés
(2) Every federal institution has the duty to ensure that such services to the travelling public as may be prescribed by regulation of the Governor in Council that are provided or made available by another person or organization pursuant to a contract with the federal institution for the provision of those services at an office or facility referred to in subsection (1) are provided or made available, in both official languages, in the manner prescribed by regulation of the Governor in Council.
(2) Il incombe aux institutions fédérales de veiller à ce que, dans les bureaux visés au paragraphe (1), les services réglementaires offerts aux voyageurs par des tiers conventionnés par elles à cette fin le soient, dans les deux langues officielles, selon les modalités réglementaires. [11] The first report from the COL, issued in April 2019, concluded that subsection 23(2) of the OLA had been violated because paragraph 12(1)(b) of the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48 (Official Languages Regulations) identifies the automated banking machine as a service to the travelling public. The Commissioner made no specific recommendation in respect of this violation because information provided by SJIAA established that it had taken corrective measures by replacing the unilingual English text with universal pictograms of the currency available. The Commissioner therefore closed the file.
[12] The second COL report, issued in May 2019, concluded that section 22 of the OLA applied to SJIAA as a "“head office”" but not as an "“other office”", and that section 23 of the OLA applied to the airport as an "“office”" of SJIAA because St. John’s airport saw more than one million passengers a year, thereby meeting the criteria for significant demand under subsection 7(3) of the Official Languages Regulations. Since these facts were not disputed, the Commissioner found that SJIAA had not complied with its language obligations under these provisions of the OLA and the Official Languages Regulations. On that basis, the COL recommended that SJIAA take the necessary actions to rectify the violations of the OLA within six months.
[13] After these two reports were rendered by the COL, Mr. Thibodeau brought an application for a remedy to the Federal Court against SJIAA under section 77 of the OLA. It should be noted that Mr. Thibodeau continued to file complaints with the COL against SJIAA after his application to the Federal Court. In one complaint, he alleged that the ATMs in St. John’s airport still displayed some text in English only. None of the COL’s reports about these additional complaints had been published at the time of the hearing before this Court and as a result, these complaints are not before this Court.
[14] However, in June 2021, after the Federal Court issued its judgment which is under appeal before this Court, the COL issued a follow-up report to evaluate SJIAA’s implementation of its recommendations. In it, the COL concluded that SJIAA had failed to take sufficient action to comply with the recommendations regarding its website and social media accounts. The COL also reminded SJIAA of the principle of substantive equality between the two official languages in such matters.
[15] This was the context in which the Federal Court considered Mr. Thibodeau’s application for remedy for the language violations alleged against SJIAA.
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[38] Finally, the relevant provisions of the Official Languages Regulations are in sections 5 and 7 defining the notion of significant demand referred to in sections 22 and 23 of the OLA. These provisions of the Official Languages Regulations are extremely detailed and it is neither necessary nor useful to reproduce them here in full. The Federal Court accurately summarizes each of the provisions as follows:[10] Section 5 of the Regulations provides that, for the purposes of section 22 of the Act, there is significant demand for services provided by an office of a federal institution in the minority official language where, among other things, the minority language population in the relevant census metropolitan area is at least 5,000 or where at least 5% of the demand for service is in that language. It is not disputed that these conditions are not met in St. John’s.
[11] Section 7 of the Regulations provides that, for the purposes of section 23 of the Act, there is significant demand for services provided by an airport in the minority official language when at least 5% of the demand for service is in that language. There is also significant demand for these services in both languages when the total number of passengers per year exceeds one million. It is not disputed that the total number of travellers at St. John’s Airport has exceeded this threshold for several years. Furthermore, in 2019, after Mr. Thibodeau’s complaints were filed, section 7 was amended by the addition of subsection 7(5), which provides that there is significant demand for both official languages if the services are offered at an airport located in a provincial or territorial capital, such as St. John’s. ....
[41] The interpretation of the OLA is also subject to the standard of correctness. However, as mentioned above, because of its quasi-constitutional status, the OLA must be given a "“liberal and purposive”" interpretation so that it is assigned the weight it deserves, as its purpose is to preserve and develop official language communities (Beaulac at para. 25; DesRochers at para. 31). The interpretation of the OLA must also comply with the method of interpretation set out in Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development), 2022 FCA 14, [2022] 3 F.C.R. 220 at para. 111; Thibodeau 2014 at para. 112; Lavigne at para. 25). . Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development)
In Canada (Commissioner of Official Languages) v. Canada (Employment and Social Development) (Fed CA, 2022) the Federal Court of Appeal stated basics of language law interpretation in the context of the federal Official Languages Act:[110] At the outset of his analysis, the trial judge reviewed the principles of interpretation applicable to language rights (Reasons, paras. 46 to 53). He pointed out that the OLA is a fundamental law that is closely linked to the values and rights set out in the Constitution and, in particular, in subsections 20(1) and 16(1) of the Charter, which deal with language of service and language of work.
[111] Therefore, "“in all cases”" language rights must be interpreted "“purposively, in a manner consistent with the preservation and development of official language communities”" (Reasons, para. 48, citing Beaulac, para. 25). That said, the modern approach to statutory interpretation, which requires that the words of an Act be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, its object and the intention of Parliament, continues to apply even with respect to language rights (Reasons, para. 52, citing Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, para. 38; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, para. 112; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773 [Lavigne SCC], para. 25; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289 and Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, para. 21).
[112] The appellants do not question the principles of interpretation so described. Only the trial judge’s application of these principles to the legal provisions at issue is challenged on appeal. Paras 113-164 are a review of parts of the Official Languages Act, with case commentary.
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