Docket: T-1023-19
Citation: 2020 FC 858
[ENGLISH TRANSLATION]
Ottawa, Ontario, August 27, 2020
PRESENT: The Honourable Mr. Justice Bell
BETWEEN:
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MICHEL THIBODEAU
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Plaintiff
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and
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ADMINISTRATION DE L'AÉROPORT INTERNATIONAL DE ST. JOHN'S
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Defendant
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ORDER AND REASONS
I.
Background
[1]
The Commissioner of Official Languages (the “Commissioner”
) brings a motion in which he seeks permission to intervene in the within matter on four (4) distinct questions. The defendant, St. John’s International Airport Authority (the “Airport”
), consents to the Commissioner’s request to intervene on questions 1 and 2. The Airport opposes the Commissioner’s motion to intervene on questions 3 and 4. The plaintiff, Michel Thibodeau (Mr. Thibodeau) consents to the motion to intervene on all four (4) questions.
[2]
By way of background, I would note that Mr. Thibodeau is no stranger to litigation involving language rights, nor is he unfamiliar with the processes before the Commissioner and the courts. According to the record before me, Mr. Thibodeau had, as of April 1, 2020, twenty (20) pending complaints against the Airport and dozens against other organizations. Between January 2017 and mid-2019, Mr. Thibodeau filed more than 200 complaints with the Commissioner’s office. In addition, he has appeared before all levels of the courts, including the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada, on language issues.
II.
Bases Upon Which Intervener Status Requested
[3]
The Commissioner originally sought to intervene on the following four questions, which are set out in paragraph 15 of his Notice of Motion:
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III.
Legislative Provisions
[4]
The relevant legislative provisions are set out in the Schedule attached to these Reasons.
IV.
Applicable Jurisprudence
[5]
This Court must take into account a number of factors when deciding whether to grant a party intervener status (Rothmans, Benson & Hedges Inc v Canada (Attorney General), [1990] 1 FC 90, 103 NR 391 (FCA); recently affirmed in Sport Maska Inc v Bauer Hockey Corp, 2016 FCA 44, 480 NR 387 at para 41 [Sport Maska]). Sport Maska sets out six (6) non-exhaustive factors. It is not necessary that all the factors be satisfied for a party to be granted intervener status. They are:
Is the proposed intervener directly affected by the outcome?
Does there exist a justiciable issue and a veritable public interest?
Is there an apparent lack of any other reasonable or efficient means to submit the question to the Court?
Is the position of the proposed intervener adequately defended by one of the parties to the case?
Are the interests of justice better served by the intervention of the proposed third party?
Can the Court hear and decide the cause on its merits without the proposed intervener?
[6]
In Canada (Attorney General) v Pictou Landing First Nation, 2014 FCA 21, 456 NR 365 at para 10 [Pictou Landing], Stratas JA, sitting alone as motions judge, considered the following additional factors:
Is the proposed intervention inconsistent with the imperatives in Rule 3 [Federal Courts Rules, SOR/98-106], namely securing
“the just, most expeditious and least expensive determination of every proceeding on its merits”
?Have the specific procedural requirements of Rules 109(2) and 359-369 been met?
[7]
In effect, the criteria to be met are flexible because every motion to intervene is different. The flexibility of the criteria permit the Court to consider the facts, the questions of law and the unique context of each case. In Sport Maska, the Federal Court of Appeal emphasized in para 42 that “the fifth factor, i.e. ‘[a]re the interests of justice better served by the intervention of the proposed third party?’ is such that it allows the Court to address the particular facts and circumstances of the case in respect of which the intervention is sought.”
Consequently, the Court may, “in any given case, ascribe the weight that the Court wishes to give to any individual factor”
(Sport Maska at para 41).
[8]
The Federal Court of Appeal in Sport Maska also pointed out in paragraph 40 that the Court, in the majority of cases, can hear and decide a case without interveners, and that the “more salient question is whether the intervener will bring further, different and valuable insights and perspectives that will assist the Court in determining the matter (Pictou Landing, para 9, last bullet)”
. This requirement is essentially the same as the one prescribed in paragraph 109(2)b) of the Rules.
V.
Analysis
[9]
The Airport consents to the Commissioner’s request to intervene on the first two (2) questions. While I am not bound by that consent and must exercise my own discretion (Atlas Tube Canada ULC v Canada (National Revenue), 2019 FCA 120, 304 ACWS (3d) 683 at para 2), I am satisfied the test set out in Rule 109 and the relevant jurisprudence are met with respect to questions 1 and 2. Leave to intervene will therefore be granted on those two (2) questions.
[10]
I now turn to questions 3 and 4 as set out in the original Notice of Motion. The Airport strenuously contests the Commissioner’s motion to intervene on the latter two (2) questions. In addition, the Airport contends the Commissioner, in his Reply, now seeks to intervene on different questions from those set out in his original Notice of Motion. Set out below are the differing versions of the Commissioner’s proposed intervention on questions 3 and 4. The original request is found in the left-hand column while that set out in the Reply is found in the right-hand column.
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Recall that the Commissioner initially indicated that he would not intervene on the issue of remedies. In the Commissioner’s affidavit sworn to on March 5, 2020 he stated in paragraph 30 that:
Translation: If I am granted leave to intervene in this case, I will not take a position with regard to the facts in dispute or on Mr. Thibodeau’s claim . . .
See also paragraph 19 of the Commissioner’s motion, where he declares:
Translation: Since the purpose of the Commissioner’s intervention is simply to present a legal position on the legal issues that the defendant raised in its memorandum, and since the Commissioner will not rule on the merits of the plaintiff’s claims, his intervention at this stage will not cause any prejudice to the parties.
[11]
I would dismiss the Commissioner’s motion to intervene on the third question for the simple reason that the Commissioner appears not to know with any degree of certainty the nature of his proposed intervention in that regard. The Court is unable to discern with certainty the nature of the proposed intervention given the varying statements made by the Commissioner. I agree with the Airport’s contention that the Commissioner appears, in his Reply, to be attempting to amend the request sought in his original Notice of Motion, but has not sought leave to do so.
[12]
In the event I am incorrect and the Commissioner’s original motion is not altered by his Reply, I would still dismiss his request to intervene on question number 3 as originally crafted. I reach this conclusion for the following reason. Nowhere in the Official Languages Act, RSC 1985, c 31 (4th Supp) is the Commissioner permitted to award damages, nor is he held out as having any particular expertise in that domain. The issue of damages and entitlement thereto is a matter for the Courts and best addressed by the Courts after having heard the evidence and the arguments advanced by two opposing litigants. The Commissioner’s input into such an issue, would, with respect, constitute a distraction from the legitimate lis between the parties in that regard. Furthermore, on a micro level particular to this case, I am convinced there is nothing the Commissioner can bring to the table on the issue of damages that Mr. Thibodeau is unable to advance. I reach this conclusion for the following reasons:
A brief survey of the reported cases shows Mr. Thibodeau has been involved before the Courts in Air Canada (Re) (2004), 71 OR (3d) 784 (SCJ) [Air Canada (Re)]; Thibodeau v Air Canada, 2004 FC 800; Air Canada v Thibodeau, 2007 FCA 115, affirming Thibodeau v Air Canada, 2005 FC 1156 and Thibodeau v Air Canada, 2005 FC 1621; Air Canada v Thibodeau, 2011 FCA 343; Air Canada v Thibodeau, 2012 FCA 14; Thibodeau v Air Canada, 2014 SCC 67, affirming Air Canada v Thibodeau, 2012 FCA 246; Thibodeau v Halifax International Airport Authority, 2018 FC 223; Thibodeau v Air Canada, 2019 FC 1102 and Thibodeau v Canada (Senate), 2019 FC 1474.
In the 2004 case of Air Canada (Re), the underlying facts were that Mr. Thibodeau was on an Air Canada flight between Ottawa and Montreal, at which time he was not served drinks in the French language. In December of 2001, the Commissioner concluded that Air Canada had violated Mr. Thibodeau’s language rights. Mr. Thibodeau then filed a claim for compensation, pursuant to section 77 of the Official Languages Act to the court-appointed monitor for Air Canada under the Companies’ Creditors Arrangements Act. The monitor rejected the claim, but Mr. Thibodeau appealed to an adjudicator appointed under that Act. Mr. Thibodeau claimed compensatory damages of $25,000 and punitive and exemplary damages of $500,000. In a separate proceeding before the Federal Court, Mr. Thibodeau claimed non-monetary relief (see Thibodeau v Air Canada, 2005 FC 1621). Before both the adjudicator and the Federal Court, the Commissioner sought and was granted the right to intervene. Mr. Thibodeau was eventually awarded $1,000 plus costs when the Superior Court of Justice dismissed his appeal and affirmed the adjudicator’s award. The Federal Court ordered Air Canada to write Mr. Thibodeau a letter of apology and pay him costs. The letter and costs were upheld when the airline appealed (see Air Canada v Thibodeau, 2007 FCA 115), a proceeding where the Commissioner was also permitted to intervene.
In the most recent case cited above, Thibodeau v Canada (Senate), 2019 FC 1474, one of the issues concerned the appropriate compensation to Mr. Thibodeau because water fountains in the East block of Parliament were adorned only with the word
“PUSH”
, without the French equivalent of“POUSSEZ”
. Mr. Thibodeau claimed and received $1,500 in damages and $700 in costs.In the 2019 case of Thibodeau v Air Canada, 2019 FC 1102, Mr. Thibodeau and his spouse sought damages, once again pursuant to s 77(1) of the Official Languages Act, for eight (8) distinct violations of their language rights, one of which was that the manufacturer had engraved the word
“LIFT”
on the seat belt buckle of an aircraft, without the accompanying French equivalent. Mr. and Mrs. Thibodeau obtained $1,500 in damages for each violation, for a total award of $12,000. A summary of the arguments made by Mr. and Mrs. Thibodeau as it relates to damages is found at paragraph 58 of the decision:
Mr. and Mrs. Thibodeau argue that damages may be granted under subsection 24(1) of the Charter and subsection 77(4) of the Act (Lavigne v Canada (Human Resources Development), 1997 1 FC 305 (FCTD); Thibodeau v Air Canada, 2011 FC 876 at paragraph 36 [Thibodeau 2011]). They submit that the first three steps of the analysis established by the Supreme Court in Vancouver (City) v Ward, 2010 SCC 27 [Ward] are satisfied: their language rights have been breached; the damages will be able to compensate them, defend language rights and deter future breaches; and the other remedies could not fully compensate them (Ward at paragraphs 4, 33, 38). With regard to the third step consisting of determining the amount of damages, Mr. and Mrs. Thibodeau refer to the decisions in Ward, Thibodeau 2005, Thibodeau 2011, Air Canada v Thibodeau, 2012 FCA 246 [Thibodeau FCA] and Thibodeau v Air Canada, 2014 SCC 67 [Thibodeau SCC] and highlight the history of Air Canada violating their language rights over the past 18 years. They suggest the amount of $1,500 per violation as damages.
In Thibodeau v Air Canada, 2019 FC 1102, the plaintiffs did not seek punitive damages in their Notice of Application. They did, however, address the matter in argument. At paragraph 66, the Court observed:
In their notice of application, Mr. and Mrs.
Thibodeau did not seek punitive damages, but they did suggest, in their memorandum and at the hearing, that punitive damages could be necessary to compensate the prejudice suffered, recognize the importance of language rights and deter Air Canada from continuing to violate the language rights of Francophones.
[13]
A review of the jurisprudence involving Mr. Thibodeau and the Court’s observations regarding Mr. Thibodeau’s argument in Thibodeau v Air Canada, 2019 FC 1102 referred to in paragraphs 12(D) and (E) above, demonstrate Mr. Thibodeau is very capable of presenting his arguments on damages and does not require the assistance of the Commissioner. Additionally, at the time the Commissioner filed the motion to intervene, Mr. Thibodeau was self-represented. Since that time, the Court Registry received, on July 23, 2020, a notice of appointment of solicitor on behalf of Mr. Thibodeau. Given that he is now represented there is no need for the Commissioner to intervene on this question of damages. The Federal Court will not require any intervention by the Commissioner to decide the question. In sum, on the issue of the third potential question about which the Commissioner wishes to intervene, I am of the view the Commissioner does not meet parts A, C, D, E, and F of the Sport Maska test set out in paragraph 5, supra.
[14]
With respect to proposed issue number 4, the Airport makes similar observations as it does with respect to question number 3, namely, that the scope of the proposed intervention is set out differently in the Reply than in the original Notice of Motion. The Commissioner attempts to amend his grounds for intervention via his Reply. Again, the original request is found in the left-hand column while that set out in the Reply is found in the right-hand column.
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[15]
The Airport further contends the proposed issue justifying intervention by the Commissioner is again inconsistent with the position taken by him in his affidavit and Notice of Motion. I agree with both the Airport’s contentions. Regardless, presuming I am incorrect in my conclusion that the Commissioner is attempting to use the Reply to amend the basis for his intervention, it is evident from a reading of the jurisprudence and the issues raised in this litigation between these particular parties that the Commissioner can bring nothing to the table that the parties are unable to bring. Again, I am of the view that the Commissioner fails to meet parts A, C, D, E, and F of the Sport Maska test as it relates to the question number 4 for which he seeks to intervene.
VI.
Costs
[16]
The Airport contends that costs should be awarded against the Commissioner given his attempts to amend the Notice of Motion via his Reply. According to the Airport, the Commissioner’s attempt to change the basis of his intervention, without notice, resulted in additional expenses. I agree that the Commissioner’s conduct should attract costs consequences. In Eli Lilly and Co v Apotex Inc, 2004 FC 1015, 132 ACWS (3d) 665 at para 6, Hugessen J described as “unfair and unjust”
the plaintiffs’ attempt to widen the scope of their motion by arguing matters in their memorandum and orally that they did not mention in their notice of motion. This reasoning was also applied in Apotex Inc v Abbott Laboratories Ltd, 2017 ONSC 1348, 145 CPR (4d) 185. The judges in both cases awarded costs to the responding party.
[17]
Rule 400 lists many factors that I may consider when exercising my discretion to award costs. Particularly relevant is subparagraph 400(3)(k)(i): “whether any step in the proceeding was improper, vexatious or unnecessary.”
The Commissioner’s Reply was improper for the above reasons. The Commissioner shall therefore pay the Airport lump sum costs in the amount of $3,000 all-inclusive of disbursements.
ORDER
THIS COURT ORDERS that:
The motion of the Commissioner of Official Languages for Canada (
“the Commissioner”
) to intervene in the application of Mr. Michel Thibodeau is granted in part.The style of cause is amended to include
“Commissioner of Official Languages of Canada”
as“Intervener”
.The Commissioner is permitted to intervene only on the following questions:
The interpretation of section 4 of the Airport Transfer (Miscellaneous Matters) Act, SC 1992, c 5; and
The interpretation of the phrase
“travelling public”
in section 23 of the Official Languages Act, RSC 1985, c 31 (4th Supp).The Commissioner shall have the right, within the scope of questions 3a and 3b above, to make written and oral representations to the Court, to present evidence by affidavit and to appeal the decision of the Court.
The Commissioner shall serve and file any affidavit, memorandum of fact and law and book of authorities within 30 days of this order. The Commissioner’s memorandum of fact and law shall not exceed 15 pages, apart from annexes.
Excepting the costs award in this Order, the Commissioner shall not be awarded costs nor shall costs be awarded against the Commissioner.
The Commissioner shall pay costs to the St. John’s International Airport Authority in the amount of $3,000 all inclusive, in any event of the cause.
"B. Richard Bell"
Judge
ANNEX
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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T-1023-19
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STYLE OF CAUSE:
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MICHEL THIBODEAU v ADMINISTRATION DE L'AÉROPORT INTERNATIONAL DE ST. JOHN'S
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DEALT WITH IN WRITING WITHOUT APPEARANCE OF THE PARTIES
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ORDER AND reasons:
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BELL J.
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DATED:
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AUGUST 27, 2020
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IN WRITING:
Ronald F. Caza et
Marie-Pier Dupont
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FOR The Plaintiff
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Michael Shortt
Amy Tang
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For The Defendant
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SOLICITORS OF RECORD:
Caza Saikaley s.r.l./LLP
Ottawa (Ontario)
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For The Plaintiff
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Fasken Martineau DuMoulin LLP
Montreal, Quebec
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For The Defendant
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