LANG Committee Report

        Section 88 of the Official Languages Act sets out the mandate of the Standing Joint Committee on Official Languages (hereinafter the Committee):

        In May 2001, in accordance with its mandate, the Committee undertook a study of the services provided by Air Canada in the two official languages. An interim report was tabled in the Senate and the House of Commons in June 2001. The Committee continued its study of Air Canada when Parliament resumed sitting in the fall, with a view to submitting a final report on the matter to Parliament. (For the list of witnesses, see Appendix A.)

        The first section of this report provides an overview of the history of Air Canada. The second section contains a history of Air Canada’s persistent failure to implement the Official Languages Act. The third section describes Air Canada’s linguistic obligations with respect to its own activities and to the activities of its subsidiaries. The fourth section summarizes the testimony heard during the fall session. In the fifth section, the Committee presents its observations and makes recommendations to help Air Canada fully meet its linguistic obligations as soon as possible. In the final section, the Committee brings to the government’s attention a few questions that arose in the course of its work.

        A.    From Crown corporation to privatized corporation

        As a Crown corporation, Air Canada was subject initially to the 1969 Official Languages Act and later to the 1988 Act. It was privatized on August 18, 1988, with the coming into force of the Air Canada Public Participation Act. Parliament wanted to ensure that after its privatization, Air Canada would continue to have the same linguistic obligations; it therefore passed section 10, which states, "The Official Languages Act applies to the Corporation."

        B. Acquisition of regional carriers and restructuring of the airline industry in Canada

        Since being privatized, Air Canada has acquired a number of regional carriers. Major restructuring of the airline industry in Canada began with the December 21, 1999, announcement that the Government of Canada was prepared to approve the purchase of Canadian Airlines by Air Canada. The transaction took place, and on January 1, 2001, Canadian Airlines International Ltd. and Canadian Regional Airlines Ltd. became wholly owned subsidiaries of Air Canada. Air Canada’s former subsidiaries (Air BC, Air Ontario and Air Nova) were merged with Canadian Regional Airlines Ltd. and renamed Air Canada Regional Inc.

        C. Review of the legislation

        The restructuring of the airline industry and the quasi-monopoly that it gave Air Canada led the government to review its legislation. As part of the legislative process associated with this review, the Commissioner of Official Languages made representations to Air Canada, the Minister of Transport, the House of Commons Standing Committee on Transport, and the Senate Committee on Transport to stress the importance of safeguarding the public’s right to be served by air carriers in either official language.

        On July 5, 2000, with the coming into force of section 10 of the Air Canada Public Participation Act, as amended by Bill C-26, an Act to amend the Canada Transportation Act, the Competition Act, the Competition Tribunal Act and the Air Canada Public Participation Act and to amend another Act in consequence, Parliament clarified the linguistic obligations of Air Canada and its subsidiaries. The provisions of the amended section 10 confirm that Air Canada is still subject to the Official Languages Act in its entirety, and spell out the linguistic obligations applicable to its subsidiaries. When Air Canada holds more than 50% of the shares of a subsidiary, it must ensure that the subsidiary implements Part IV of the Act (communications with and services to the public) in respect of air services, including incidental services. Parts VIII, IX and X of the Act respecting investigations and court remedies are also applicable in this context.

        Before exploring Air Canada’s language-related obligations in today’s context, it would be worthwhile to review some of the problems that successive commissioners of Official Languages have identified over the past 30 years as being major obstacles to Air Canada’s full compliance with the Official Languages Act. This section does not go into exhaustive detail about Air Canada’s linguistic performance, but rather it gives prominence to some of the issues that have remained unresolved over the years.

        A.    Air Canada — a Crown corporation

        In his second annual report, Commissioner Keith Spicer noted that the recurrence of complaints of the same nature involving services to and communications with the public clearly indicated that Air Canada was far from adequately serving the French-speaking public. He urged the corporation to redouble its efforts:

        The next year, the Commissioner gave this unflattering appraisal:

        The Commissioner was not convinced by Air Canada’s explanations justifying the continuing absence of services in French:

        In 1978, the Commissioner pointed to Air Canada’s half-heartedness toward the Official Languages Act:

        In 1979, the Commissioner published statistics on the linguistic composition of Air Canada’s staff:

        In 1986, Francophone representation among Air Canada’s staff was as follows:

        In 1987, the Commissioner summarized his evaluation of Air Canada’s language-related performance in the following terms:

        The same year, the Commissioner published the following information about complaints involving Air Canada:

        B. Air Canada, a privatized corporation

        In July 1988, Parliament passed the new Official Languages Act. The following month, Air Canada ceased to be a Crown corporation, but the legislation authorizing its privatization made it subject to the Official Languages Act. Most of the provisions in the Official Languages (Communications with and Services to the Public) Regulations came into effect in December 1992.

        In 1990, Commissioner Fortier severely criticized Air Canada’s official languages performance:

        During the 1990s, the commissioners began to criticize Air Canada's lack of co-operation in complaint investigations in their annual reports. They also noted the company's failure to provide accurate information on the balance of Francophones and Anglophones among its staff members. Most importantly, however, dissatisfied with the action taken as the result of their recommendations, the commissioners made use of the powers accorded them under Part X of the Act of 1998, on court remedy, in an effort to resolve the systemic problems.

        1.    Minority press

        In September 1990, after exhausting all other avenues of recourse, Commissioner Fortier filed 11 complaints with the Federal Court relating to the fact that Air Canada did not advertise in the French-language press in the Winnipeg and Moncton regions. He contended that the company had not met the minimum requirements of section 30 of the Act on the use of the Francophone and Anglophone media to reach the country's two linguistic communities. The Commissioner withdrew the application for court remedy after

        2.   Ground services

        Over the years, the commissioners have stressed the fact that, by permitting employees to select their shifts solely on the basis of seniority, the company was too often compromising its language obligations at all bilingual airport service points. Despite all of Air Canada's stated good intentions, Commissioner Goldbloom noted in 1996, that the company had failed to act on the recommendations in his reports on investigations done on the Toronto (Pearson) and Halifax airports and concluded that the number and type of complaints indicated systemic problems at these two airports.

        In September 1996, the Commissioner made two applications for court remedies at the request of complainants, under Part X of the Official Languages Act. The subject of the applications was the lack of service in French at these two airports, in breach of Part IV of the Act (including sections 23 and 28). They also raised the question of the Act's precedence over the content and application of the provisions of collective agreements. The Air Canada employees' union intervened in these disputes. The Federal Court ordered a mediation session be held. The three parties to the dispute met with a prothonotary of the Federal Court. The second mediation session on August 30, 2001 produced an agreement.

        The memorandum of understanding was signed by the Commissioner of Official Languages, the President and Chief Executive Officer of Air Canada and two union representatives in the fall of 2001. It sets out the procedures to follow in future investigations of airport services, the co-operation to be provided by Air Canada and the union in such investigations and measures for the implementation of Air Canada's linguistic obligations.

        The Commissioner of Official languages filed notices of discontinuance in the case of the two matters before the Court, which put an end to the two applications for court remedy initiated in 1996. As a settlement was reached out of court, the Federal Court will not have to decide on the matter of the precedence of the Act over the provisions of collective agreements.

        It should be noted that, between the months of October 1989 and February 1995, Air Canada acquired 100% of the shares of the regional air carriers (Air Nova, Air Ontario and Air BC). The Commission noted that the language rights of Canadians were diminished, in part through a lack of service in both official languages by Air Canada's regional carriers. In 1997, Commissioner Goldbloom applied to the Federal Court in order to obtain clarification on the application of the Official Languages Act to regional carriers. This action was necessitated by the fact that Air Canada considered the regional carriers to be separate entities not subject to the Act and that, furthermore, they did not provide services on its behalf under the meaning of section 25 of the Act.

        Because of this disagreement, the Commissioner was unable to investigate the complaints with regard to the services provided to the public by the regional carriers. Only the decision of the Court could confirm the Commissioner's interpretation of the provisions of the Act in respect of the regional carriers. With the new section 10 of the Air Canada Public Participation Act coming into effect, the application for a court remedy and the application with reference to Air Ontario's services in the air had to be withdrawn.

        A.     Air Canada’s linguistic obligations regarding its own activities

        Air Canada is subject to the Official Languages Act in its entirety. With regard to service to the public, it has linguistic obligations when there is significant demand or the nature of the office warrants (Part IV of the Act). The scope of those obligations is specified in the Official Languages (Communications with and Services to the Public) Regulations.

        In-flight services must be provided in both official languages on any route that (1) starts, has an intermediate stop or finishes at an airport located in the National Capital Region, the Montreal census metropolitan area or the City of Moncton; (2) starts and finishes at airports located in the same province, where that province has a linguistic minority population that is equal to at least 5% of the total population (Ontario, Quebec and New Brunswick); (3) runs between two of these provinces. On other routes, services must be provided in both official languages when the demand for service in the minority official language is equal to at least 5% of the total demand.

        Ground services must be provided in both official languages at airports that serve 1 million passengers per year or if the demand for services in the minority official language is equal to at least 5% of the total demand. Offices that provide ticketing and reservation services or cargo services in cities or other localities are subject to the same regulations as apply to offices serving the general public. The Treasury Board is responsible for identifying them.

        With regard to the media, the Corporation is required under section 30 of the Official Languages Act (Part IV) to use the most suitable media for reaching interested members of the public effectively and efficiently in the official language of their choice.

        Concerning language of work, Part V of the Act makes it the Corporation’s duty to provide its employees with personal and central services and regularly used work instruments in both official languages in designated bilingual regions.

        Lastly, under Part VI of the Act, the Corporation must ensure that English-speaking Canadians and French-speaking Canadians have equal opportunities for employment and advancement and that the composition of its workforce tends to reflect the presence of both official language communities. Air Canada must fulfil this commitment by ensuring that employment opportunities are open to all English-speaking and French-speaking Canadians.

        As it is subject to part VII of the Act, Air Canada must ensure that it fulfils its responsibilities toward official language minority communities.

        B. Air Canada’s obligations regarding the activities of its subsidiaries

        Under subsection 10(2) of the Air Canada Public Participation Act, as amended in 2000, Air Canada must ensure that its subsidiaries implement Part IV of the Official Languages Act in respect of air services, including incidental services. Air services are the same as in-flight services. The incidental services to be provided by any subsidiary, as defined in subsection 10(10) of the amended Act, include

(a) ticketing and reservation services;

(b) information, including notices and announcements, that it publishes
      or causes to be published to inform its customers in respect of
      its routes or tariffs;

(c) services provided or made available to customers at an airport,
      including the control of passengers embarking and disembarking
      aircraft, announcements directed at customers and counter services;
      and

(d) services related to baggage or freight claims and client relations.

        These linguistic obligations came into force on July 5, 2000, for subsidiaries providing services in Eastern Canada and on July 5, 2001, for subsidiaries serving Western Canada. Canadian Airlines International Ltd. will have to start meeting the same linguistic obligations on January 1, 2004. However, if Canadian Airlines International Ltd. or Canadian Regional Airlines Ltd. replaces Air Canada or one of its subsidiaries in providing an air service that the Corporation or the subsidiary provided on or after December 21, 1999, the Corporation has the duty to ensure that service in both official languages is maintained as if the Corporation continued to provide the same service.

        The evidence heard in May 2001 was summarized in the Committee’s interim report of June 2001. The Committee heard testimony from officials of the Department of Transport and the Treasury Board Secretariat; the Ombudsman and Senior Director, Employment Equity and Linguistic Affairs, Air Canada; the President and Chief Executive Officer, Canadian Tourism Commission; and the President, Association des Gens de l’Air du Québec. The Committee took this evidence into consideration in preparing its final report.

        After Parliament resumed sitting in the fall, the Committee held two public meetings on specific subjects related to its general mandate. On September 18, 2001, the Honourable Stéphane Dion, President of the Privy Council, Minister of Intergovernmental Affairs and Minister responsible for coordinating issues related to official languages in the government, provided an overview of the official languages situation in Canada and presented a few ideas that will guide the preparation of the action plan he is developing with the ministerial liaison group. Mr. Dion noted that he had spoken with Air Canada after the Committee’s interim report was tabled, and that the government will take note when the final report is published.

        On September 26, 2001, the Commissioner of Official Languages, Ms. Dyane Adam, gave a presentation to the Committee on her annual report for the period from April 1, 2000, to March 31, 2001. She summed up her assessment of Air Canada’s linguistic performance as follows:

        The Commissioner said that she expected the Committee’s final report to be forceful and to contain targeted recommendations to ensure that Air Canada fulfils its linguistic obligations.

        The Committee continued its study of Air Canada by holding an in camera briefing session with representatives of the Office of the Commissioner of Official Languages. During public hearings, the Committee heard testimony from representatives of Air Canada employee unions and the President and Chief Executive Officer of Air Canada. It concluded its public hearings by inviting the President of the Treasury Board and the Minister of Transport to appear.

        A.    Representatives of Air Canada employee unions

        On October 29, 2001, the Committee heard testimony from three Air Canada employee union representatives: Mr. Serge Beaulieu, President, Montreal Regional Council, Air Canada Pilots Association, and national spokesman for the Pilots Association; Mr. Edmond Udvarhelyi, Union Representative, CUPE Section 4001 — Air Canada, Canadian Union of Public Employees; and Mr. Gary Fane, Transportation Director, National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada).

        Mr. Beaulieu stated that, at the moment, Air Canada has fewer than 300 French-speaking pilots, which accounts for slightly less than 8% of the total workforce of 3,500 pilots, whereas before the merger with Canadian Airlines International, the ratio was 16%. He pointed out that for several years now, Francophone pilots and the Pilots Association have been making representations to the management of Air Canada requesting compliance with the Official Languages Act and a hiring policy more in keeping with the makeup of the Canadian population.

        Mr. Beaulieu said that he disagreed with Air Canada’s explanation that the situation was due to a shortage of qualified Francophone candidates. He pointed out that by itself, the Centre québécois de formation aéronautique [Quebec centre for aeronautical training] at the CEGEP in Chicoutimi turns out 25 graduates a year from its three-year program, which is the equivalent of programs offered at recognized institutions in Ontario and Alberta. He argued that there was a substantial pool of qualified Francophone pilots from which Air Canada could recruit.

        Mr. Udvarhelyi stated that he represented Montreal flight attendants, or about 1,000 people, with the expected addition of 170 employees of the former Canadian

        Mr. Fane stated that his union represented about 11,000 people working for Air Canada and its regional airlines as passenger agents in airports and as reservation agents. He noted that every day, customers are served by someone who has not had the proper language training to serve them in the language of their choice. He maintained that the situation had deteriorated slightly after the privatization of Air Canada but had become much worse following the acquisition of Canadian Airlines, which did not have the same concern for bilingualism. He noted that Air Canada claims to be unable to afford language training, and he hoped that the government would help the Corporation solve the problem. He pointed out that the expected layoffs by the regional airlines would affect younger agents, who are bilingual. He also stated that the collective agreements were available in only one language, English.

        The witnesses were questioned about their allegations that the printed version of collective agreements was unavailable in French. Mr. Udvarhelyi stated that his union had filed a complaint on this matter with the Commissioner of Official Languages. He also indicated that all bargaining was done in English since Air Canada’s negotiators were unilingual Anglophones.

        To ensure that they would be included in the record of the meeting, the Joint Chair read two passages from the English version of the collective agreement between Air Canada and the Canadian Union of Public Employees, Airline Division, that was in force from November 1, 1998, to October 31, 2001.

        Section 19.10, headed "Language of contract," states that

Subsection 19.11.01 states that

        Asked about ways of ensuring that services are provided in the official language of the customer’s choice, Mr. Fane stated that his union would be in favour of mandatory language training for sales and service employees. He said that he was prepared to be flexible about seniority, in order to avoid layoffs of young bilingual employees, as long as language training was offered to unilingual employees with seniority. He acknowledged that the Official Languages Act takes precedence over collective agreements.

        At the end of the session, the Joint Chair invited the Commissioner of Official Languages to comment. Ms. Adam stated that Air Canada must remedy a persistent problem and collect complete data to be used in determining whether the Corporation is complying with the provisions of the Act concerning Anglophone and Francophone participation in its workforce. She also pointed out Air Canada’s shortcomings with regard to language of work. She noted that over the years, Air Canada had repeatedly violated the same provisions of the Act, and she argued that a profound culture change was needed. She hoped that in dealing with a serious reoffender such as Air Canada, the Committee would consider stricter, more coercive measures.

        B. President and Chief Executive Officer, Air Canada

        On December 3, 2001, the Committee heard testimony from the President and Chief Executive Officer of Air Canada, Mr. Robert A. Milton, accompanied by senior executives of the Corporation, who answered questions about their areas of responsibility. Mr. Milton began by addressing the issue of the 137 complaints filed against Air Canada in 2000 by people who felt that the Corporation was not living up to its linguistic obligations under the Official Languages Act. He stated that while he did not want to minimize the rights of the complainants, Air Canada had carried just over 30 million passengers that year, and that Air Canada had far more customer contacts than any other federal institution.

        Mr. Milton admitted that after its integration with Canadian Airlines, Air Canada had a few problems in complying with the Official Languages Act, since Canadian Airlines was not subject to the Act and therefore did not have a policy of hiring bilingual staff. He explained that Air Canada’s workforce jumped from 23,000 to about 40,000 overnight, which considerably diluted the new company’s bilingual capacity. He mentioned the measures taken by Air Canada to address the situation, including implementation of language training programs for former Canadian Airlines employees and instructions to ground and in-flight personnel scheduling departments to consider language compliance requirements in all future staffing integration outcomes.

        Mr. Milton referred to his meeting a few weeks earlier with the Commissioner of Official Languages, which resulted in an agreement to jointly develop an action plan to fulfil the Corporation’s commitments. He reviewed the practices instituted by Air Canada over the years, which, in his view, would provide a solid framework for delivering on its linguistic obligations: a dedicated official languages staff headed by a senior director, reporting directly to the President and Chief Executive Officer; the Corporation’s in-house language school, established 25 years earlier; a policy of hiring bilingual public-contact employees exclusively; services provided in both official languages on every Air Canada flight; public announcements at the beginning of flights detailing the crew’s language capability; internal surveys at both Air Canada and its regional airlines to verify the quality of announcements in both official languages at airports.

        Mr. Milton pointed out that Air Canada had signed a memorandum of understanding on advertisements in the minority-language press with Commissioner Goldbloom, and that last fall, he himself had signed a memorandum of understanding regarding ground services at the Halifax and Toronto airports with the Commissioner and the union concerned. He also noted that the Corporation had co-operated with the Treasury Board in designing a question on equitable participation that is in line with the spirit of the legislation, which will provide more information about Anglophone and Francophone representation in the Corporation. He concluded his presentation by admitting that there may be gaps in the Corporation’s linguistic performance, but he maintained that there was never a lack of commitment.

        In response to a suggestion made by a Committee member that the President of Air Canada should commit himself to implementing the March 2002 action plan in 180 or 360 days, Mr. Milton cited the complexity of running an airline and the complexity of the collective agreements, which contain specific provisions concerning seniority and employee transfers. He explained that achieving the objectives in the action plan would require continued work.

        Ms. Michelle Perreault-Ieraci, Ombudsman and Senior Director, Employment Equity and Linguistic Affairs, was invited to comment on the recommendation made in the Committee’s interim report that Air Canada place in the seat back-pockets on its aircraft a form that passengers could use to make comments or file a complaint with the Commissioner of Official Languages. She argued that implementation of this recommendation, which she claimed would have generated 30 million forms, would have been very costly, and that the forms would have been extremely difficult to manage. She stated that the alternative solution adopted by the company was to conduct a monthly telephone survey of several hundred passengers who were asked four questions about the use of the official languages in airport and in-flight announcements and services.

        Air Canada executives responded to the allegations by the union representatives of Montreal flight attendants (Canadian Union of Public Employees) and passenger agents (Canadian Auto Workers) that the collective agreements were not printed in French, and to the complaint by the flight attendants’ representative that collective bargaining was conducted in English only. Ms. Sue Welscheid, Vice-President, People, Air Canada, asserted that negotiations were in fact conducted in English because the union presidents in all cases were unilingual Anglophones. She stated that the company had never received CUPE approval for the French version of the flight attendants’ collective agreement, and that, as soon as approval was received, the French version would be printed. Ms. Perreault-Ieraci pointed out that the CAW collective agreement was produced in French and English at exactly the same time.

        When asked which would prevail in case of a conflict between Air Canada’s responsibilities under the Official Languages Act and implementation of a collective agreement, Mr. Milton acknowledged the primacy of the legislation, but he pointed out that historically, contractual obligations to the unions had taken precedence. He alleged that the unions had always maintained that the Official Languages Act should not take precedence over their collective agreements.

       Ms. Perreault-Ieraci observed that the tripartite memorandum of understanding signed in the fall of 2001 is a major step forward since, for the first time, the union (CAW) made a commitment to help Air Canada find solutions to the problem of providing bilingual services in airports. She explained that the company and the union have six months to work together before reporting to the Commissioner on the results of their efforts. She noted that this should solve most of the problems by providing a degree of flexibility in employee assignment in airports, where the seniority rule currently prevails, to the detriment of language capability.

        Several members of the Committee lamented the fact that the layoffs announced in the fall of 2001 affected Air Canada’s younger employees, who were bilingual. Ms. Welscheid stated that when the company realized that employees would have to be laid off and that this would have a negative effect on bilingual capability, the company wrote a letter to its unions asking them if they would negotiate a way to effect the layoffs that would not involve seniority. She said that the company received no response to those letters.

        When invited to suggest what the Committee could recommend to the government to help Air Canada fulfil its obligations, Mr. Milton emphasized the need for a clear assertion of the Official Languages Act’s precedence over collective agreements so that the Corporation could move bilingual employees where their services were required. Citing the difficult financial situation in the airline industry worldwide, he asked the Committee to consider the possibility of government funding to help Air Canada accelerate language training for unilingual employees of the former Canadian Airlines.

        C. President of the Treasury Board and Minister of Transport

        She explained that the Treasury Board uses various means to promote compliance with the Official Languages Act. As an example, she pointed out that in 2000-2001, the Treasury Board conducted the most extensive audit so far of active offer and provision of services to the travelling public in the Vancouver, Calgary, Winnipeg, Toronto (Pearson), Dorval, Moncton and Halifax airports, and that overall, the findings concerning the services provided by Air Canada were satisfactory. She stated that the Treasury Board planned to carry out a follow-up to these audits in 2002 to ensure that the necessary improvements had been made.

        The President of the Treasury Board indicated that the Committee’s concerns about the incomplete statistics collected by Air Canada regarding the number of English-speaking and French-speaking employees had been heard. She noted that the Official Languages Branch of the Treasury Board and Air Canada had agreed last summer on a more specific question for identification with one of Canada's two official languages. She stated that this new question would provide more specific data when the results of the summer 2001 employee survey will be published in 2002.

        The President of the Treasury Board pointed out that following the coming into force of the amendments to the Air Canada Public Participation Act in July 2000 and the integration of Canadian Airlines International employees, Air Canada gave the Treasury Board Secretariat, in its annual review for 2000-2001, information concerning the measures taken to provide bilingual services on the new routes. She indicated that the Treasury Board Secretariat’s response to Air Canada’s President and Chief Executive Officer acknowledged the work done on this matter and encouraged him to continue his efforts in this area. She added that with regard to implementation of other aspects of the program, the Secretariat had asked that measures be taken to correct the shortcomings identified, such as the language capacity of service points designated as bilingual, and the data on equitable participation.

        The President of the Treasury Board commented on the concerns expressed by some Committee members about the Official Languages (Communications with and Service to the Public) Regulations. She stated that the regulations are based on a strong legal foundation, the Official Languages Act, which applies to federal institutions and Air Canada, and on the Canadian Charter of Rights and Freedoms, which stipulates that the services are to be provided in both official languages where there is significant demand or where the nature of the office so requires.

        The President of the Treasury Board concluded her presentation by acknowledging that everything is not perfect. She said that the Secretariat must carry out the work assigned to it by the Act, but it must do so in close co-operation with Air Canada and the Office of the Commissioner of Official Languages, to ensure that Canadians who travel receive the services they require in their preferred official language, wherever that is their right.

        The Honourable David Collenette, Minister of Transport, briefly described the linguistic regime that applies to Air Canada. He pointed out that under the legislative amendments to section 10 of the Air Canada Public Participation Act, which came into force on July 5, 2000, Air Canada has the duty to ensure that subsidiaries, over which it has greater than 50% control, provide air services to clients in either of the official languages in accordance with the requirements of Part IV of the Official Languages Act and the associated regulations. He added that the effective date of this obligation depends on the region and the subsidiary providing the service.

        The Minister of Transport noted that the President of the Treasury Board, the Commissioner of Official Languages, the courts, and he, himself, all had a role to play in monitoring the implementation of the Official Languages Act. He recognized that as Minister of Transport, he was well placed to stress to Air Canada the importance that the government attaches to this matter, in the belief that the provision of bilingual air services makes good commercial sense, and to indicate to Air Canada that the government expects the company to comply with all the requirements of the Act.

        The Minister of Transport referred to the memorandum of understanding between his department and the Office of the Commissioner of Official Languages on the processing of alleged violations concerning safety briefings aboard aircraft. He noted that it specifically acknowledges the responsibility of the Department of Transport with respect to enforcement actions in this area.

        The Minister of Transport concluded his presentation by assuring the Committee that the government is not disposed to entertain the recent suggestions that Air Canada should be relieved of its linguistic obligations because they are more onerous than those of other carriers. He explained that those obligations are here to stay, as they are for other federal transportation providers that operate successfully in the private sector, such as Canadian National Railways.

        During the question period that followed, a Committee member lamented the fact that the Minister of Transport had simply forwarded to Air Canada the recommendation in the Committee’s interim report that a complaint form in four copies be placed in the seat back-pockets on Air Canada aircraft. Questioned on the same subject, the President of the Treasury Board replied that the Treasury Board Secretariat could strongly recommend that Air Canada take such a measure but could not require it to do so.

        Invited to comment on Mr. Milton’s assertions that collective agreements had forced Air Canada to lay off its bilingual employees with little seniority first, which reduced its bilingual capability, the two ministers pointed out that Air Canada has been subject to the Official Languages Act since 1969, and that consequently, a substantial proportion of its employees with more seniority should also be bilingual. The President of the Treasury Board acknowledged that collective agreements might present a problem, but she pointed out that the union representatives had told the Committee that they were prepared to comply with the Official Languages Act.

        When questioned about what action can be taken if a federal institution or Air Canada fails to carry out its linguistic obligations, the President of the Treasury Board explained that when the Commissioner of Official Languages receives a complaint, she can apply to the Federal Court for a remedy. Mr. Jacques Pigeon, Senior General Counsel, Transport Canada, explained that Part X of the Official Languages Act provides for a court remedy. He cited subsection 77(4) of the Act, which states that "[w]here, 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."

        The members of the Committee wish to reiterate the commitment made before them by Air Canada’s President and Chief Executive Officer to present a detailed action plan in March 2002 and implement it as quickly as possible so that the Corporation may fully meet its linguistic obligations. They join in the request made by the Commissioner of Official Languages in her 2000-2001 annual report that Air Canada rise to the linguistic challenges presented by the merger. They hope that implementation of the recommendations made in this report will help ensure that Air Canada meets its linguistic obligations as set out in the Official Languages Act.

        1.  Leadership

        Air Canada is not fully meeting the requirements of the Official Languages Act. Year in and year out, successive commissioners of Official Languages have criticized the Corporation in their annual reports for its failure to co-operate in the investigation of complaints about violations relating to service to the public, language of work, and equitable participation. Since the Corporation was privatized in 1988, the Office of the Commissioner of Official Languages has conducted about 10 in-depth studies in various areas. Deficiencies were found in customer service, language of work, employee training, the purchase of advertising space in minority-language media. A number of recommendations were made to the Corporation’s management to correct those deficiencies. One after another, the five commissioners have urged the Corporation’s senior executives on numerous occasions to be bolder and more committed to their search for lasting solutions.

        In his testimony to the Committee, the President of Air Canada, Mr. Robert A. Milton, stated that even if there were no Official Languages Act, Air Canada would endeavour to provide bilingual services to its customers since doing business in many languages was advantageous. However, since there has been no real progress for far too long, the Committee is of the opinion that the President must show true leadership to ensure that the official languages program is fully implemented and that the linguistic duality of Canada, a value that he claims to share, is recognized at every level of his corporation.

        2.    Action plan

        Most Committee members believe that the complaints lodged against Air Canada are merely the tip of the iceberg, since they regularly witness breaches of the Official Languages Act when they travel by air. The investigations conducted by the Office of the Commissioner of Official Languages have shown that users of the services of Air Canada and its subsidiaries too often have very unpleasant and stressful experiences when they try to assert their linguistic rights. To rectify this situation, the President of Air Canada has promised to prepare an action plan by March 2002. In its interim report, the Committee made two recommendations to promote the linguistic rights of travellers. The government has indicated, through its Minister of Transport, that this is the carrier’s responsibility.

        In the summer of 2000, in response to a request by the Senate Committee on Transport, the Commissioner of Official Languages produced a set of guidelines entitled Putting in Place an Official Languages Act Appropriate Implementation Scheme at Air Canada. The document, which was intended as an accountability framework, was forwarded to the President of Air Canada by the Minister of Transport, the Honourable David Collenette.

[14]  See text in Appendix C.        

        Before section 10 of the Air Canada Public Participation Act was amended, it was difficult for most Air Canada customers to know whether they were entitled to receive services in the official language of their choice. For example, Francophone citizens buying an Air Canada ticket from Halifax to North Bay could use French at the Halifax airport if they went to the right ticket window. Prior to the amendment of section 10, however, according to the Corporation, they no longer had that right on the Air Nova flight from Halifax to Montreal. At Dorval Airport, they were once again entitled to service in French, as far as Toronto. But when they took off from Lester B. Pearson Airport on Air Ontario, their linguistic rights went into limbo. If they were lucky, they recovered them with their luggage in North Bay.

        Following the amendment of section 10, Air Canada decided to conduct surveys on the routes previously served by its regional carriers and on the routes served by Canadian Airlines and its subsidiaries to measure the significance of the demand for services to the public in the minority language. However, Francophones travelling on Air Canada’s subsidiaries have seldom received active offer of services in both official languages, and many of them are unaware of their new linguistic rights. It would have been better to make this target group aware of their linguistic rights before conducting the surveys, which are, under the circumstances, open to interpretation.

        Virtually all of the complaints made to the Commissioner of Official Languages concern the lack of services in French, even in Quebec. Accordingly, Air Canada should include specific measures for its Francophone customers in its action plan.

        3.    Follow-up mechanisms

        The Committee wishes to keep a close eye on Air Canada’s implementation of the official languages action plan. To that end, it will request the co-peration of the Commissioner of Official Languages, the President of the Treasury Board, and the Minister of Transport.

        4.    Tripartite memorandum of understanding

        In November 2001, Air Canada, the Office of the Commissioner of Official Languages and the National Automobile, Aerospace, Transportation and General Workers Union of Canada concluded a memorandum of understanding with respect to two court applications. The applications were made to the Federal Court by the previous Commissioner of Official Languages owing to the repeated absence of French-language services at the Toronto (Pearson) and Halifax airports. Implementation of the memorandum of understanding should encourage Air Canada to be more co-operative in investigations by the Commissioner and motivate the union to review the entire issue of assigning bilingual agents to comply with the Official Languages Act. The Committee intends to evaluate the results of this undertaking to co-operate in the investigation of complaints and the assignment of bilingual employees in consultation with the Commissioner of Official Languages.

        5.    Equitable participation

        Since the late 1980s, Air Canada’s data on the first official language of its employees have included an excessively high percentage of "unknown" cases (as high as 37.7%). The President of Air Canada promised the Committee that the problem of incomplete first-language statistics would be solved, which is essential in order to determine whether the Corporation’s workforce tends to reflect the presence of the two official language communities, as required by Part VI of the Official Languages Act. The President of the Treasury Board has also assured the Committee that the understanding between Air Canada and Treasury Board on the linguistic identification of employees will ensure that more specific data are available in 2002.

        A year before Air Canada was privatized, the President and General Manager of Air Canada, Mr. Pierre Jeanniot, told the Committee that 14% of the Corporation’s pilots were Francophones. He promised to improve the situation, as follows:

        Despite the lack of recent complete data on the first official language of Air Canada’s pilots, it is evident that the objective referred to on April 15, 1987, was never attained. According to the evidence given by Mr. Serge Beaulieu, President of the Montreal Regional Council of the Air Canada Pilots Association, French-speaking pilots currently make up just under 8% of the total pilot workforce, down from about 16% before the integration of Canadian Airlines.

        On May 30, 2001, Mr. Serge Martel, the President of the Association des Gens de l’Air du Québec (AGAQ), responded to the statement made by Air Canada’s

                           1. Clarifying the application of the Official Languages Act in its entirety
                                     to Air Canada’s subsidiaries

        For too long now, travellers have not known when they were entitled to services in both official languages, in flight and on the ground, with Air Canada and its regional carriers. The recent restructuring of the airline industry has only aggravated this confusion. After buying up Canadian International and Canadian Regional airlines, Air Canada also reorganized its regional carriers (Air Ontario, Air Nova, Air BC, Canadian Regional), regrouping them under the name Air Canada Regional Inc. At the same time, Parliament passed the new section 10 of the Air Canada Public Participation Act. Its wording confirmed that Air Canada is still subject to the Official Languages Act in its entirety, and that its subsidiaries are partially subject to it, with separate obligations and dates of coming into force. Since in reality all the activities of these various carriers appear to be increasingly merged or integrated, making it impossible to distinguish between them, it is clear that the new section 10 no longer reflects satisfactorily either the letter or the spirit of the Official Languages Act: it does not spell out the subsidiaries’ obligations under Part V (Language of Work) or Part VI (Equitable Participation) of the Act. This state of affairs (intertwined activities) justifies a revision of section 10.

        The Committee observes that, more than 30 years after the enactment of the first Official Languages Act, Air Canada is still not complying fully with its linguistic obligations. It notes that Air Canada has repeatedly violated the same provisions of the Act, despite the recommendations of successive commissioners of Official Languages. It also notes the difficulties of enforcing a quasi-constitutional statute based on one of the key values of Canadian society.

        3.   Precedence of the Official Languages Act over collective agreements

        Unions favour the seniority rule, set out in collective agreements, regarding the assignment of employees to positions and shifts. Air Canada has often stated that this practice prevented it from fulfilling its linguistic obligations. In 1996, Commissioner Goldbloom was forced to make court applications that raised the issue of the Official Languages Act’s precedence over collective agreements. Those cases were recently settled out-of-court, but no ruling was made on the issue of the precedence of the Official Languages Act.

        In their testimony to the Committee, both the union representatives and the President of Air Canada stated that the Official Languages Act should take precedence over collective agreements. The President of Air Canada suggested that the Committee recommend that the government clearly assert the Act’s precedence over collective agreements to allow the Corporation to post its bilingual employees where their services were needed.

        The Committee recognizes that the seniority rule is a major barrier to the fulfilment of the Corporation’s linguistic obligations to its customers. It is of the view that the government should no longer tolerate the seniority rule’s taking precedence over the Official Languages Act, a quasi-constitutional statute.

        4.   Use of both official languages in safety briefings aboard aircraft

        The Canadian Aviation Regulations, which come under the Aeronautics Act, require operators using aircraft configured to seat 20 or more people, excluding the pilots, to provide the necessary safety briefings to passengers in both official languages. When travelling by air, Committee members often find that the quality of the French-language briefing is inadequate, which clearly conflicts with the equal status of the country’s two official languages.

        C. To the President of Treasury Board

        Treasury Board is responsible for the general direction and coordination of policies and programs relating to the implementation of the Official Languages Act. Paragraph 46(2)(d) of the Act states that, in carrying out its responsibilities, Treasury Board may monitor and audit compliance with official languages policies, directives and regulations. Thus Treasury Board has various means of supporting efforts by the Commissioner of Official Languages to ensure that the recommendations she makes to the President of Air Canada are acted upon. In view of Air Canada’s track record, the Committee requests that the President of Treasury Board be more vigilant in monitoring the Corporation’s performance. The Committee particularly has in mind the compilation and publication of statistics on the first official language of Air Canada staff members, and of the posting and active offering of service in both official languages at airports.

        D. To the government

        The Committee notes that the integration of employees of the former Canadian Airlines, which was not subject to the Official Languages Act, has generated a substantial demand for language training. It recognizes that the provision of language training to thousands of employees in a short period entails considerable outlays at a time when the Corporation has to manage the current crisis affecting the airline industry. The Committee hopes that the government will provide specific one-time financial assistance to enable Air Canada to improve its bilingual capacity as quickly as possible.

        The Committee draws the government's attention to a number of issues that have arisen from its work. It has chosen this innovative approach in order to raise issues it is not prepared to make recommendations on at this time, but would like the government to consider. The Committee expects the government to provide comments on these issues in its response to the present report.

        A.    The rule of 5% of the demand in the minority official language

        The regulations under Part IV of the Official Languages Act set out the situations in which services are to be provided automatically in both official languages (for example, on flights within Ontario, Quebec and New Brunswick). It imposes the same requirement when demand in the minority official language represents 5% of the total annual demand. In his testimony before the Committee, the President and CEO of the Canadian Tourism Commission asserted that Canada's official bilingualism was one of its principal distinctions and is clearly an asset in the face of the competition in the world tourism market. The President of Air Canada told the Committee that delivering services in both official languages made business sense with foreign tourists travelling to Canada or taking Air Canada flights to American destinations. He said that Air Canada was working to provide bilingual service around the world, regardless of the rule of 5% of demand in the minority official language.

        It is the opinion of the Committee that the 5% rule creates considerable confusion among Air Canada clientele, who are generally unaware of their rights to service in the official language of their choice. The Committee feels that it would be desirable for travellers to have Air Canada's services provided in both languages across the country, on flights and in the airports, without regard to the rule of 5%. It therefore asks Treasury Board to study the possibility of abolishing the 5% rule in connection with Air Canada's services.

        B. Absence of information on the availability of French-speaking professional pilots

        The testimony heard by the Committee drew attention to the differing opinions expressed by the Association des Gens de l'air du Québec (AGAQ, airline pilots' association in Quebec) and the representative of Air Canada's pilots, on the one hand, and by Air Canada itself, on the other. The pilots' representatives contest Air Canada's position that the under-representation of Francophone pilots within the company is the result of an insufficient number of candidates to draw on.

        Within the context of her investigation of the complaint by the AGAQ, mentioned earlier, the Commissioner of Official Languages acknowledged the merits of Air Canada's argument that the numbers within Air Canada's pilots should be compared with the numbers of suitable potential candidates, that is, candidates certified to pilot commercial aircraft. However, Air Canada had no data on the linguistic composition of the population of professional pilots in Canada. To the extent it could, the Commission had to determined this itself, but it acknowledged that the data obtained was incomplete.

        In order to bring this matter out into the open, the Committee would like the government to obtain the relevant information from Statistics Canada, National Defence and Transport Canada in order to establish the linguistic composition of the population of professional pilots in Canada. From the results of the study, it would then be possible to decide whether financial assistance should be made available for a second, public, French-language flying school.

        C. Financial responsibility of Air Canada directors for violations of the Official Languages Act

        The Committee deems it essential that the largest Canadian airline reflect Canada’s linguistic duality both abroad and domestically, and would therefore like to invite the government to consider the possibility of introducing financial responsibility of Air Canada’s directors for violations of the Official Languages Act.

        The Committee notes that director liability already exists in Canada in a number of areas. Where corporations commit certain offences, various laws make specific provision for the personal penal liability of corporate directors and officers. This is particularly the case in the areas of occupational health and safety, and environmental protection. Legislation which provides for corporate director/officer penal liability in the event of an offence extends to such officials who "directed, authorized, assented to, acquiesced in or participated in the commission of the offence" (see: Canada Labour Code, subsection 149(2); Canadian Environmental Protection Act, 1999, subsection 280(1); and Competition Act, subsection 65(4)).

        A more novel formulation of corporate director/officer penal liability provides that such officials are liable if they are negligent in failing to prevent the commission of an offence, or a prohibited occurrence, which is attributable to the corporation (see: Occupational Health and Safety Act, R.S.O. 1990, c. O.1, section 32; and Workers Compensation Act, R.S.B.C. 1996, c. 492, subsection 77(1)). A further variant of director/officer penal liability presumes certain corporate officials liable in certain circumstances unless those officials can demonstrate that they exercised "due diligence" or otherwise took all reasonable steps to prevent the commission of the offence by the corporation.

        However, in cases of financial responsibility, infractions need not take the form of an actual offence for which a formal trial would be available. The administrative monetary penalty (AMP) is a more efficient and increasingly popular option in certain areas of government regulation. AMP provisions simply fix, for specified prohibited acts, a monetary penalty, which is then owing to the government and collectible as a civil debt against the offender. AMPs are currently found in at least 19 federal statutes.

        As the title of the report says, good intentions are not enough. The Committee is submitting these options to the government in order to ensure that Air Canada becomes a model of compliance with the Official Languages Act.

CONCLUSION

        Good intentions are not enough, especially when it comes to complying with obligations imposed under a law that is virtually part of the Constitution. Their study has shown the members of the Committee that Air Canada’s senior management must introduce an appropriate system for implementing the Official Languages Act, and must change the corporate culture as well. This has become even more necessary with the integration of the former Canadian Airlines’ employees: Air Canada must find a way to improve its linguistic performance with a personnel that is now proportionately less bilingual than it was.

        The Committee’s members attach the highest possible importance to seeing the President of Air Canada act on his commitment to introduce an action plan by the end of March 2002 for supporting the implementation of the Official Languages Act. However, given that good intentions are not enough, the members also expect to see the action plan put into effect as expeditiously as possible. They urge the unions representing Air Canada’s employees to co-operate with the Corporation in making the action plan a reality.

        The Committee’s members call on the President of Treasury Board and the Minister of Transport to make sure that Air Canada meets the linguistic obligations incumbent upon it and reflects Canada’s linguistic duality, both at home and abroad. They would like the Government of Canada to remind the senior management and personnel of Air Canada of the importance it places on respect for the language rights of all Canadians.