T-3675-76
Association des Gens de l'Air du Québec Inc.,
Roger Demers, Pierre Beaudry, Marc Bériault
and Guy Charette (Plaintiffs)
v.
The Honourable Otto Lang, personally and as
Minister of Transport, and The Attorney General
of Canada (Defendants)
and
Canadian Air Traffic Control Association Inc.
(CATCH), Canadian Air Line Pilots Association
(CALPA), The Attorney General of Quebec and
Keith Spicer (Mis -en-cause)
Trial Division, Marceau J.—Quebec, December 20
and 21, 1976; Ottawa, January 12, 1977.
Jurisdiction—Transport—Whether Minister has power to
control language used by pilots and air traffic controllers in
the performance of their duties—Possible conflict with Offi
cial Languages Act—Whether Minister acted in bad faith or in
abuse of powers conferred on him by Act—Possible conflict
with Quebec Official Language Act—Aeronautics Act, R.S.C.
1970, c. A-3, s. 6—Official Languages Act, R.S.C. 1970, c.
O-2, ss. 2, 9, 10 and 39—Air Regulations, SORl61-10 as
amended, s. 104(k)—Aeronautical Communications Standards
and Procedures Order, SORl76-551—Quebec Official Lan
guage Act, S.Q. 1974, c. 6, s. 12.
Plaintiffs seek a declaratory judgment to the effect that
Aeronautical Communications Standards and Procedures
Order SOR/76-551, concerning the use of French in aeronauti
cal communications in Quebec, is null and void in that the
Minister has no power to issue orders respecting the use of a
language in air communications, that even if he has, the Order
in question is in contravention of the Canadian Official Lan
guages Act and the Quebec Official Language Act and was in
any event improperly exercised. The plaintiffs further ask for
an injunction requiring the defendants to cease preventing
pilots and air traffic controllers from using French in the course
of their duties in Quebec. The defendants claim as a prelim
inary issue that the Association des Gens de l'Air du Québec
Inc. cannot be a co-plaintiff in this action by reason of the
provisions of section 59 of the Quebec Code of Civil Procedure.
Held, the action is dismissed. The federal Minister of Trans
port has the power under the Aeronautics Act to make regula
tions and Regulation 104(k) provides that he may issue direc
tives concerning, inter alla, communications systems and
procedures. Language being a means of communication, the
Minister must therefore have the power to order the language
to be used in air communications. Section 2 of the Official
Languages Act is declaratory and must be read in the context
of the Act as a whole, in particular section 9, which enjoins
those responsible to implement the Act "to the extent that it is
feasible to do so." Section 10, which imposes a specific duty on
the Minister of Transport, is intended for the benefit of the
"travelling public", and Regulation 104(k) amply fulfils the
duty owed to others under the Act. The Quebec Official
Language Act does not enter into the picture, since the Prov
ince has no power to legislate in the field of aeronautics. The
Order does not constitute an improper exercise of his powers by
the Minister; he was obliged by the circumstances existing at
the time when it was made to place a temporary freeze on the
expansion of the use of French in air communications and he
made it clear that the Government's intention was still to
establish the use of French in air communications in Quebec to
the extent that such a practice was compatible with air safety.
It would appear that the first-named plaintiffs are not prevent
ed by section 59 of the Quebec Code of Civil of Procedure from
being parties to this action in view of their articles of associa
tion as set out in accordance with Part III of the Quebec
Companies Act.
Barker v. Edger [1898] A.C. 748; Reference as to the
Validity of the Regulations in relation to Chemicals
[1943] S.C.R. 1 and Reference as to the Validity of
Orders in Council in Relation to Persons of the Japanese
Race [1946] S.C.R. 248, applied.
ACTION.
COUNSEL:
Guy Bertrand, Serge Joyal and Gilles Grenier
for plaintiffs.
Gaspard Côté and Paul 011ivier, Q.C., for
defendants.
Gary Q. Ouellet for Canadian Air Traffic
Control Association Inc., mise-en-cause.
Rodolphe Bilodeau for the Attorney General
of Quebec, mis -en-cause.
Royce Frith, Q.C., for Keith Spicer,
mis -en-cause.
SOLICITORS:
Bertrand, Richard, Dumas, Côté, Otis &
Morand, Quebec, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
Levasseur, Ouellet, Morneau, Plourde &
Levesque, Quebec, for Canadian Air Traffic
Control Association Inc., mise-en-cause.
Attorney General of Quebec on his own behalf
as mis -en-cause.
Royce Frith, Q.C., Ottawa, for Keith Spicer,
mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: The Association des Gens de l'Air
du Québec Inc. and four francophone Quebec
pilots and controllers have joined here to challenge
the validity of the Aeronautical Communications
Standards and Procedures Order of the federal
Minister of Transport, registered on August 30,
1976 as SOR/76-551 and published in the Canada
Gazette the following September 1. Brought
against the Honourable Otto Lang, federal Minis
ter of Transport (hereafter referred to in these
reasons as "the Minister") and the Attorney Gen
eral of Canada, the action asks that the order be
declared void and that defendants be enjoined to
cease preventing pilots and air traffic controllers
from using French in performing their duties in
Quebec. The following were "mis -en-cause" (im-
pleaded), as permitted by the Code of Civil Proce
dure of Quebec, but without any particular claim
being made against them: the Canadian Air Line
Pilots Association (CALPA), which was not repre
sented at the hearing; the Canadian Air Traffic
Control Association (CATCH), which sent an
observer; the Attorney General of Quebec and the
Commissioner of Official Languages, Keith
Spicer, who, through their respective counsel, pre
sented to the Court the relevant observations
which they considered appropriate.
The Court is aware that this action was brought
in the context of the nationwide controversy that
has arisen in recent months concerning the
progressive introduction of bilingualism into air
traffic control services in the Province of Quebec.
It transfers to the Courts the struggle which fran-
cophone Quebec aviation personnel have carried
on for some time to have their right to use their
language in performing their duties in Quebec
recognized. The action may obviously be under
stood and appreciated from its context; however, it
is clear—and I wish to emphasize this at the
outset—that the context cannot influence the out
come. The Court has before it a problem which is
properly a legal one, which may be analyzed and
solved only in legal terms, on the basis of legal
principles; it is not called upon to decide on the
legitimacy of the struggle of the francophone avia
tion personnel, or on the merits of their demands
in principle. The only question raised here is
whether or not the disputed Order, registered on
August 30, is valid; if it is valid, the action must be
dismissed; if it is not, the Order will be declared
void, and the possibility of complying with the
accessory conclusions for an injunction put for
ward in the declaration will have to be examined
and decided.
One last preliminary observation: in his defence,
the Deputy Attorney General of Canada, on behalf
of the defendants, disputed the right of the Asso
ciation des Gens de l'Air du Québec to be co-plain
tiff in the action, on the basis that it did not have
the necessary legal interest. The Association was
constituted in accordance with Part III of the
Quebec Companies Act (R.S.Q. 1964, c. 271), for
the purposes, in particular, of [TRANSLATION]
"promoting the development, safety and efficiency
in civil aviation in Quebec" and of "promoting the
professional interests of its members (currently
about 1300) and defending their rights and those
of all persons working in civil aviation in Quebec".
It seems to me that in seeking to have an Order
which affects in part the organization of civil
aviation in Quebec declared void (I do not include
the conclusions for an injunction), the Association
is exercising a remedy which does not exist solely
in the person of its members, but is also inherent in
the Association, and that, as a result, it is not
contravening the rule as set out in Art. 59 of the
Quebec Code of Civil Procedure, as alleged. The
situation here seems to me to be different from
that presented in Jardins Taché v. Entreprises
Dasken ([1974] S.C.R. 2). However, it is neither
necessary nor useful to make a clear determination
of this point in view of the conclusions I have
reached with respect to the action itself and the
fact that its scope is in any case purely academic,
given the presence of the four other plaintiffs
whose capacity and interest are not disputed.
Having made these introductory remarks, it is
appropriate that I now reproduce in full the text of
the disputed Order:
Registration
SOR/76-551 30 August, 1976
AERONAUTICS ACT
Aeronautical Communications Standards and Procedures
Order
The Minister of Transport, pursuant to subsection 6(2) of the
Aeronautics Act and paragraph 104(k) of the Air Regulations,
hereby revokes the Aeronautical Communications Standards
and Procedures Order (Air Navigation Order, Series I, No 1)
made on the 7th day of July, 1976 and registered under number
SOR/76-460.
Dated at Ottawa, this 27th day of August, 1976
DONALD S. MACDONALD
pro Minister of Transport
AIR NAVIGATION ORDER, SERIES I, NO 1
ORDER PRESCRIBING AERONAUTICAL STANDARDS AND
PROCEDURES RESPECTING VOICE COMMUNICATIONS
Whereas, in accord with the Official Languages Act, all the
institutions of the Government of Canada have the duty to
ensure, to the extent that it is feasible for them to do so, that
members of the public, where there is a significant demand, can
obtain available services from and can communicate with them
in both official languages;
Whereas the Government desires to complete the introduc
tion of bilingualism into Air Traffic Control in the Province of
Quebec;
Whereas the Government, in accord with the Aeronautics
Act, desires to ensure the best possible comprehension between
pilots and air traffic controllers and is aware of the necessity
that the safety of passengers and crew members must not
thereby be compromised;
Whereas the Government is committed to completing the
introduction of bilingualism into Air Traffic Control in the
Province of Quebec as it is demonstrated that this objective can
be achieved without prejudice to safety; and
Whereas it is deemed necessary, in the interest of safety, to
authorize formally the use of the French language in air-
ground communications in the Province of Quebec in a manner
that is consistent with the progressive introduction of bilingual-
ism into such communications as it is demonstrated that it can
be done without prejudice to safety.
Therefore the Minister of Transport, pursuant to subsection
6(2) of the Aeronautics Act and paragraph 104(k) of the Air
Regulations, hereby makes this Order.
Short Title
1. This Order may be cited as the Aeronautical Communi
cations Standards and Procedures Order.
Interpretation
2. In this Order,
"advisory services" means the provision by ,one aeronautical
radio station to another such station of flight safety;informa-
tion, including aeronautical weather information and service-
ability reports in respect of aerodromes, air navigation aids
and approach aids, but does not include the provision of IFR
air traffic control clearances, instructions or procedures;
(services consultatifs)
"aeronautical radio station" means
(a) an air station located in an aircraft capable of two-way
voice communication with another such air station, an air
traffic control unit and any aeradio ground station,
(b) an air traffic control unit capable of two-way voice
communication operated by the Department of Transport
including
(i) an area control centre established to provide air traffic
control to IFR flights,
(ii) a terminal control unit, and
(iii) a control tower or a temporary or mobile air traffic
control unit established to provide for the control of air
traffic, or
(c) an aeradio ground station operated by the Department of
Transport capable of two-way voice communication other
than an air traffic control unit;
(station aeronautique de radio)
"control zone" means a controlled air space extending upward
vertically from the surface of the earth and covering an area
approved by the Minister; (zone de contrôle)
"Minister" means the Minister of Transport; (Ministre)
"positive control zone" means a control zone designated and
defined in the Designated Airspace Handbook published at
the direction of the Minister; (zone de contrôle integral)
"temporary control zone" means a control zone in which
specific air traffic control services are provided on a tempo
rary basis. (zone de contrôle temporaire)
General
3. (1) The person operating an air station referred to in
paragraph (a) of the definition "aeronautical radio station" in
section 2 that is in communication with an aeradio ground
station referred to in paragraph (c) of that definition within the
Province of Quebec and listed in Schedule I, as amended from
time to time, is authorized to provide advisory services in the
French language to that aeradio ground station.
(2) The person operating an air station referred to in para
graph (a) of the definition "aeronautical radio station" in
section 2 within the Province of Quebec is authorized to provide
advisory services in the French language to the pilot-in-com
mand of another aircraft on
(a) a radio frequency other than an emergency frequency,
an aeradio ground station frequency or an air traffic control
unit frequency, for purposes other than relay purposes; or
(b) any frequency that may be in use, for relay purposes.
(3) The person operating an aeradio ground station located,
within the Province of Quebec and listed in Schedule I, as
amended from time to time, is authorized to provide advisory
services in the French language to the pilot-in-command of an
aircraft where that pilot-in-command, by implication or other
wise, has indicated his desire to receive advisory services in the
French language.
4. The person operating an aeronautical radio station located
at an aerodrome in the Province of Quebec listed in Schedule
II, as amended from time to time, is authorized to use the
French language for the purpose of providing advisory services
and air traffic control services within the positive control zone
or control zone and on the manoeuvring area of the aerodrome
to the pilot-in-command of an aircraft where
(a) the pilot-in-command has indicated his desire that such
services be provided in the French language by making his
initial radio communication with the aeronautical radio sta
tion in the French language; and
(b) the aircraft is being operated in accordance with the
visual flight rules only.
5. The person operating a temporary or mobile air traffic
control unit described in subparagraph (b)(iii) of the definition
"aeronautical radio station" in section 2 located within the
Province of Quebec and utilized to service a temporary control
zone is authorized to use the French language for the purpose
of providing air traffic control services and advisory services at
special aviation events, as defined in the Special Aviation
Events Safety Order, conducted in accordance with the visual
flight rules or for the purpose of providing other temporary air
traffic control services specifically approved by the Minister.
•
6. Where an emergency occurs during flight within the
Province of Quebec, the pilot-in-command may communicate
in the French language with any aeronautical radio station
located within that Province with respect to any matter relating
to the emergency.
7. Except as authorized by sections 3 to 6, no person operat
ing an aeronautical radio station in Canada shall transmit, or
respond to, advisory services, air traffic control clearances,
instructions or procedures in any language other than English.
Dated at Ottawa this 27th day of August, 1976
DONALD S. MACDONALD
pro Minister of Transport
SCHEDULE I
LIST OF AERADIO GROUND STATIONS IN THE PROVINCE OF
QUEBEC
1. Montreal (Dorval)
2. Quebec City
3. Mont -Joli
4. Sherbrooke
5. Roberval
6. Sept-Îles
7. Fort Chimo
8. Schefferville
9. Nitchequon
10. Lake Eon
11. Poste-de-la -Baleine
12. Inoucdjouac
13. Rouyn
14. Gaspé
15. Matagami
16. La Grande Rivière
SCHEDULE II
LIST OF AERODROMES IN THE PROVINCE OF QUEBEC
1. Quebec City
2. St. Jean
3. Sept-Ïles
4. Baie -Comeau
5. St. Honoré
6. Val d'Or
To understand the plaintiffs' reaction and put
their grounds of complaint in perspective, it is
important to review in general outline the origin of
this Order and to locate it in the evolution of the
language policy of the federal Department of
Transport in the field of air-ground communica
tions.
Before 1974, there was no question of using
French in air-ground communications in Canada,
no more in Quebec than elsewhere; only English
was authorized, for what were said to be safety
reasons. The desire of francophone pilots to speak
in their native language was said to be understand
able, but the problems that the use of French
together with English raised, and the dangers
which could result in view of the large number of
unilingual anglophone controllers and pilots, were
put forward. On June 19, 1974—the Official Lan
guages Act, (R.S.C. 1970, c. O-2), had been
passed in 1969—a first step in this direction was
taken as a result of, in particular, a study aimed at
assessing "the implications in designating French
language units in air traffic control towers as this
affects air/ground communications", followed by
"a limited aviation safety investigation of the sit
uation then prevailing at Quebec City ... regard
ing the use of both official languages in the provi
sion of control services" (see "Background", in the
report filed as Exhibit P-10). A notice issued by
the Director General of Civil Aeronautics, Mr.
McLeish (NOTAM 12/74, Exhibit P-8)
announced that French would thereafter be per
mitted for air-ground communications in visual
flights (VFR) at five airports in the Province of
Quebec, those at Quebec City, St. Jean, Sept-Îles,
Baie -Comeau and St. Honoré. On April 1, 1976, a
second notice relating to language (NOTAM
5/76, Exhibit P-8), again issued by the Director
General of Civil Aeronautics, a Mr. Arpin on this
occasion, replaced that of 1974. This second
notice, after stating the desire of the Department
to respect the spirit of the Official Languages Act
while maintaining the standards and procedures
required by the Aeronautics Act to ensure the
protection of everyone concerned, confirmed the
existing situation with respect to the five Quebec
airports and announced an extension in the field of
"communications by VFR flights with Transport
Canada aeradio stations in the Province of
Quebec".
The already stated opposition of the mises -en-
cause associations, CATCA and CALPA, to the
program of extending bilingualism in aviation
communications then became more overt, firmer
and apparently more unshakeable; it culminated in
a strike of CALPA pilots, which began on June 19,
1976. On the following June 28, the Minister
agreed, in a memorandum of understanding with
the representatives of the two mises -en-cause asso
ciations (Exhibit P-5), not to make any additional
expansion in the program of introducing French
into aviation communications in Quebec, so long
as the new Commission of Inquiry into Bilingual-
ism and Air Safety, the creation of which he had
announced five days before, had not submitted a
favourable report on that matter.' On the same
day the strikers returned to work.
On June 30, 1976, the Minister issued a first
Order (SOR/76-408) which substantially repeated
the provisions of the notice of April 1, except that
he added a sixth airport, Val d'Or, to the five
already included. This Order was replaced by a
' The specific mandate given to the Commission was not
introduced in evidence, but its creation was proven by the
documents filed, and all parties submitted their pleadings
assuming its existence.
second on the following July 8 (SOR/76-460,
P-8), which was in turn rescinded six weeks later,
on August 27, and replaced by the one at issue in
the case at bar. It does not seem to be necessary to
quote in full here these two Orders, 2 which preced
ed the one at issue, the text of which is completely
reproduced above. They are differently worded,
less elaborate, and contain no preamble, but they
cover the same ground and are substantially to the
same effect with respect to the rules they create.
However, it should be noted, to complete this
concise but sufficient review of the essential facts
surrounding the case, that the plaintiffs had
already challenged at law the validity of the Order
of July 8, before it was rescinded; they therefore
had to cease their action, but they immediately
brought another against the replacement Order,
putting forward substantially the same grounds of
invalidity.
The validity and legal scope of these grounds
must now be examined. It appears to me that they
may be summarized in four propositions, which I
shall formulate and consider in turn, in an order
which does not actually conform to their respective
importance in plaintiffs' argument, but which
appears more logical to me.
1. Plaintiffs first claim that the federal Minister
of Transport did not have the power to issue an
Order respecting language in air-ground
communications.
By section 6 of the Aeronautics Act, (R.S.C.
1970, c. A-3), Parliament, after giving the Minis
ter of Transport the responsibility for control and
regulation of air navigation over Canada, delegat
ed to him power to make the regulations, orders
and directions which he considered necessary for
that purpose. Subsection (1) of the section lists,
although not exclusively, the various matters with
which the regulations may deal, for which approv
al of the Governor in Council is required; subsec
tion (2) continues:
6. (2) Any regulation made under subsection (1) may
authorize the Minister to make orders or directions with respect
2 Published in an Extra of the Canada Gazette, dated July
23, 1976.
to such matters coming within this section as the regulations
may prescribe.
Section 104(k) of the Air Regulations (SOR/
61-10, amended by SOR/69-627) made under the
authority of subsection (1) of section 6 of the
Aeronautics Act, grants to the Minister the power
to make orders or directions having the purpose of
prescribing standards and conditions relating to
"the standardization of communications equip
ment and systems and communications procedures
used in air navigation."
Of course, the plaintiffs did not intend to put in
issue the extent of federal legislative competence
in matters of aeronautics (see In re The Regula
tion and Control of Aeronautics in Canada [1932]
A.C. 54), a term which includes, as we know,
everything relating to aviation (see in particular,
Johannesson v. Rural Municipality of West St.
Paul [1952] 1 S.C.R. 292). They recognize that
the Aeronautics Act gave the Minister of Trans
port responsibility for controlling and regulating
aviation, and that section 6 is intended to give the
Minister the "tools" which he needs to fulfil this
responsibility. What they claim is that language
could not be intended in the expression "communi-
cation systems and procedures" (systèmes et
méthodes de communication) in section 104(k) of
the Air Regulations. A "procedure" (méthode),
they say in their brief (p. 22), is strictly [TRANS-
LATION] "a way of doing something, of acting,
which also includes an order of doing it". From
this, they continue, one may say that "communica-
tions procedures" means "way of making cotn-
municâtions", which, according to them, permits
the conclusion: "the word procedure certainly
includes the power to specify the vocabulary which
pilots and controllers must use, to specify the
lexicon. However, it does not mean the language in
which the pilots and controllers must speak."
In my opinion, language is the whole of the units
of spoken or written speech, and I do not see how
it can be separated from vocabulary and lexicon. I
do not believe that one can give to the expression
"communications procedures" a meaning as lim
ited and narrow as that suggested by plaintiffs.
The procedure is the "manner", and in matters of
communication, the language to be used is, in my
opinion, part of the manner of communicating. To
"standardize communications systems and proce
dures", it is first necessary to specify, if there is
any doubt in the matter, the language that will be
spoken.
In my opinion, the Minister had the power to
issue an Order prescribing the language to be used
in air-ground communications.
2. If this is so, say the plaintiffs—and it is in
this second proposition that they put forward their
major argument for invalidity—the Minister may
not, in prescribing the language to be used,
infringe the provisions of the Official Languages
Act, (R.S.C. 1970, c. O-2), the Act, passed after a
long evolution, which legally recognized the status
of French as an official language, which [TRANS-
LATION] "has always had, in the territory of
Quebec, the status of a national language".
By thus relying on the concept of a "national
language" and recalling as they did the struggles
of francophone Canadians to safeguard and gain
recognition of their cultural and linguistic herit
age, the plaintiffs defended the Official Languages
Act, but I do not see how they could claim to draw
from it any legal argument. The only question
which the Court would face in the argument put
forward here is whether the Order impugned is
void because it is contrary to the provisions of the
Official Languages Act, and this question itself is
divided into two parts, one of whether the alleged
contradiction in fact exists, and the other of
whether such a contradiction, assuming that it
exists, compels the Court to find the Order void.
Plaintiffs based their contentions that the Order
is in fact contrary to the Official Languages Act
on three provisions of that Act: primarily that in
section 2, but also those in sections 10 and 39
(specifically their first subsections). The texts are
as follows:
2. The English and French languages are the official lan
guages of Canada for all purposes of the Parliament and
Government of Canada, and possess and enjoy equality of
status and equal rights and privileges as to their use in all the
institutions of the Parliament and Government of Canada.
10. (1) Every department and agency of the Government of
Canada and every Crown corporation established by or pursu
ant to an Act of the Parliament of Canada has the duty to
ensure that, at any office, location or facility in Canada or
elsewhere at which any services to the travelling public are
provided or made available by it, or by any other person
pursuant to a contract for the provision of such services entered
into by it or on its behalf on and after the 7th day of September
1969, such services can be provided or made available in both
official languages.
39. (1) Where upon the submission of any Minister it is
established to the satisfaction of the , Governor in Council that
the immediate application of any provision of this Act to any
department or other institution of the Parliament or Govern
ment of Canada (hereinafter in this section called an "authori-
ty") or in respect of any service provided or made available by
it
(a) would unduly prejudice the interests of the public served
by the authority, or
(b) would be seriously detrimental to the good government
of the authority, employer and employee relations or the
effective management of its affairs,
the Governor in Council may by order defer or suspend the
application of any such provision to the authority or in respect
of any such service for such period, not exceeding sixty months
from the 6th day of September 1969, as / the Governor in
Council deems necessary or expedient.
It is clear that section 2 is what the mis -en-cause
Commissioner of Official Languages, Mr. Spicer,
has many times called the "cornerstone" of the
Act in his reports (in particular, see the second
Annual Report, 1971-1972, p. 17). It is clear that
it is more than the expression of wishful thinking
or a platonic and inconsequential declaration of
principle. In it, Parliament has clearly expressed
its will, which permits the conclusion that counsel
for the plaintiffs adopted from the reasons of the
Chief Justice of the Superior Court of Quebec in
Joyal v. Air Canada (an unreported judgment
against which an appeal has been brought, but
which was entered as an exhibit and which all
parties cited frequently), to the effect that "this
provision of equality in chapter 0-2 [section 2 of
the Official Languages Act] ... established the
principle of official languages in our country, and
gives it a basis in fact."
However, on the practical level of the legal
rights and duties flowing from it, I do not see how
section 2 can be isolated from the whole of the
Act. In my opinion, it is a "declaration of status",
which could not be formulated in stronger terms,
but which remains introductory. Parliament sets
out the conclusions to be drawn from it in the
following sections where, in section 9 et seq. in
particular, it defines the "duties" which it imposes
on departments and agencies of the Government of
Canada, to give effect to its "declaration of sta
tus". Section 9 sets out the general rule in this
regard:
9. (1) Every department and agency of the Government of
Canada and every judicial, quasi-judicial or administrative
body or Crown corporation established by or pursuant to an
Act of the Parliament of Canada has the duty to ensure that
within the National Capital Region, at the place of its head or
central office in Canada if outside the National Capital
Region, and at each of its principal offices in a federal bilingual
district established under this Act, members of the public can
obtain available services from and can communicate with it in
both official languages.
(2) Every department and agency of the Government of
Canada and every judicial, quasi-judicial or administrative
body or Crown corporation established by or pursuant to an
Act of the Parliament of Canada has, in addition to but without
derogating from the duty imposed upon it by subsection (1), the
duty to ensure, to the extent that it is feasible for it to do so,
that members of the public in locations other than those
referred to in that subsection, where there is a significant
demand therefor by such persons, can obtain available services
from and can communicate with it in both official languages.
"To the extent that it is feasible for it to do so":
in my opinion, these are the basic terms to be
considered. Parliament did not claim to introduce
complete bilingualism in practice immediately,
because obviously the facts in the context of which
it was legislating did not permit it to do so. The
status has been declared and the irrevocable goal
defined, the duty to take steps to reach the goal is
imposed, but the speed of progress toward the goal
(everywhere but at a head or central office, since
the bilingual districts had not been established) is
measured in terms of feasibility. Here we see the
origin of the idea of the "Commissioner of Official
Languages" which section 19 et seq. develop and
put into operation.
This central idea of the Act is even clearer in
that Parliament was careful, in certain fields, to
avoid any idea of the "feasible" and imposed a
firm and immediate duty measured solely by the
need and the demand. Section 10, on which the
plaintiffs rely, has precisely the purpose of defin
ing one of these fields, in which it was considered
essential that the stated goal be reached without
delay: that relating to services provided to the
travelling public.
Plaintiffs are fully aware of the exceptional
scope of section 10, and they even seek to base
their argument on it, suggesting that airline pilots,
and especially private pilots, are part of this "tra-
velling public" which Parliament intended to ben
efit. Such an interpretation of the terms of section
10 appears to me, however, to be a wrongful
extension. Convincing proof of this may be had
simply by referring to the Aeronautics Act, in
which it is clear that, for the legislator, the owners
or operators of aircraft and pilots are a special
group of the Department of Transport's customers,
with very specific duties, requirements and obliga
tions, for whom specific technical services are
maintained; all this is precisely in order to ensure
the safety of the "travelling public". In my opin
ion, the services provided under the Aeronautics
Act to this special group of customers, the owners
and operators of aircraft and pilots, are distinct
from those covered by section 10 of the Official
Languages Act, which the Department of Trans
port must ensure for the travelling public.
Understanding and interpreting the Official
Languages Act as I have just done, I do not see
how it is possible to state that, on its face, the
Order impugned is contrary to the letter or the
spirit of the Act. Plaintiffs argue that the Minis
ter's directions were intended to and in fact did
have the effect of "freezing" the expansion of
bilingualism in air communications in Quebec.
However, there is nothing to justify saying that
such a freeze is more than temporary. On the
contrary, the Minister stated this temporary
nature in unequivocal terms in his preamble (it
may be noted in passing that this is the sole real
purpose of the three successive versions of the
Order, at least so far as can be seen from examin
ing the texts). The speed of introduction is
undoubtedly affected, and the slow and continuous
evolution which might have continued has been
checked as such, but everything suggests that this
was simply a stage, and the notion of "feasible" in
section 9(2) of the Official Languages Act is
certainly not infringed by the introduction of bilin-
gualism in stages. In my opinion, this is why
section 39, cited above, which covers the case in
which it is desired to "defer or suspend" complete-
ly the enforcement of a provision of the Act,
should simply be eliminated from the discussion.
In my opinion, the Order of August 30 is not
contrary to the specific provisions of the Official
Languages Act, nor, considered by itself (and
nothing permits me to go beyond that), to its spirit
and objectives.
Obviously, this conclusion makes it superfluous
to examine the other question posed by the propo
sition as formulated. Nevertheless I would add, to
cover all aspects of the argument, that the broad
regulatory powers delegated to the Minister by
this special Act, dealing with the very specific
subject of the Aeronautics Act, could not be
reduced, altered or diminished in any way by the
provisions of a general Act adopted subsequently,
like the Act respecting official languages, without
specific words to that effect. In my opinion, this is
so because of the well-known rule of interpretation
(see Maxwell, Interpretation of Statutes, 12th ed.,
p. 196 ff.; Craies On Statute Law, 7th ed., p. 377
ff.), the rationale of which is expressed as clearly
as possible in Lord Hothouse's observation (in
Barker v. Edger [1898] A.C. 748) which has been
cited many times, in particular, by Ritchie J. of
the Supreme Court in his reasons in The Attorney
General of Canada v. Lavell—Isaac v. Bédard
([1974] S.C.R. 1349, at p. 1361):
When the Legislature has given its attention to a separate
subject, and made provision for it, the presumption is that a
subsequent general enactment is not intended to interfere with
the special provision unless it manifests that intention very
clearly. Each enactment must be construed in that respect
according to its own subject-matter and its own terms.
Therefore, even if there was still a doubt in my
mind as to whether the Order in dispute complies
completely and on all points with the Official
Languages Act, I would still think that it is not
possible to declare it ultra vires the powers dele
gated to the Minister by the Aeronautics Act, and
pronounce it void, solely for that reason.
3. Plaintiffs go on to say, in introducing their
third argument for invalidity, that if the Minister
theoretically had the power to issue an Order such
as that impugned here, he could only exercise this
power "properly", that is, not [TRANSLATION]
"for improper purposes, not provided in the Act, in
bad faith, on the basis of irrelevant
considerations".
The argument uses extremely forceful terms,
but it is important to analyze it dispassionately
and give it its proper weight.
It is true that judicial intervention is possible to
counter the wrongful exercise, for improper pur
poses and in bad faith, of a regulatory power left
to the discretion of a delegated authority, since the
enabling legislation would then necessarily have
been exceeded. Duff C.J. clearly stated this possi
bility in his reasons for judgment in Reference as
to the Validity of the Regulations in relation to
Chemicals ([1943] S.C.R. 1), when he wrote:
True, it is perhaps theoretically conceivable that the Court
might be required to conclude from the plain terms of the order
in council itself that the Governor General in Council had not
deemed the measure to be necessary or advisable, or necessary
or advisable by reason of the existence of war. In such a case I
agree with Clauson L.J. (as he then was) that the order in
council would be invalid as showing on its face that the
essential conditions of jurisdiction were not present ....
However, it is important to recall that such a
possibility is undoubtedly remote, as a court has no
power to decide the necessity or advisability of the
rule whose validity is disputed, any more than it
can inquire into the rationale and merits of the
reasons which led to adopting it. The authority
empowered by Parliament to carry out the Act is
the sole judge of this necessity and advisability,
and in this regard it need account only to Parlia
ment (see, in particular, Reference as to the
Validity of Orders in Council in Relation to Per
sons of the Japanese Race [1946] S.C.R. 248).
The bad faith alleged—and that is what the vari
ous terms used by plaintiffs to express their claim
definitely come to—must be manifest to give rise
to judicial sanctions.
What is the basis of plaintiffs' claims? It is the
fact that in issuing the Order the Minister
responded to pressures from the two mises -en-
cause associations, CALPA and CATCA, whose
opposition to the extension of the "bilingualiza-
tion" program in air-ground communications in
Quebec was both unshakeable and determined,
and that he acted with the intention of ending an
especially damaging illegal strike. Several allega
tions in the declaration were directed to supporting
this claim, as were most of the documents filed.
It is not for the Court to evaluate and judge the
behaviour of the two mises -en-cause associations,
and I am prepared to recognize that the memoran
dum of understanding of June 28, 1976 (Exhibit
P-5) suggests that the attitude of CALPA and
CATCA had a determining influence on the Min
ister's decision to make the disputed Order. How
ever, I do not see how bad faith or the wrongful
exercise of a discretionary power for purposes
other than those provided by the Act could be
found. It seems to me to be not only defensible but
necessary that the Minister, who has the responsi
bility to establish the standards and conditions in
the field of aeronautics that will ensure order and
safety, should consider all aspects of a problem to
be solved, both those which are normal, foresee
able and understandable and those which are less
so, in the manner he considers most appropriate.
The Minister had already decided that it was
advisable to seek the advice of a special independ
ent Commission, to satisfy himself and to clarify
matters for himself, and undoubtedly also to satis
fy and to clarify matters for others. Impelled by
regrettable but no less real circumstances, he
decided to impose a temporary "freeze" by a
formal order, taking care to reiterate the Govern
ment's desire to carry forward the introduction of
bilingualism in air-ground communications in
Quebec, and to explain that it seemed necessary to
him to formally authorize the use of the French
language "in a manner that is consistent with the
progressive introduction of bilingualism into such
communications as it is demonstrated that it can
be done without prejudice to safety". Can it be
said that in so doing he manifestly abused his
powers and gave evidence of bad faith? Judging by
the record as submitted, I have no hesitation in
answering that he did not.
4. In addition, plaintiffs add in a fourth argu
ment, the Order impugned is invalid because it
infringes the Quebec Official Language Act, (S.Q.
1974, c. 6).
I admit that I do not understand the meaning of
this alleged ground of invalidity. Section 12 of the
Quebec Act, which prescribes that French is the
language of public administration in Quebec, was
referred to, and it was noted that a number of the
pilots affected by the Order (including one of the
plaintiffs, Roger Demers) was employed by the
Quebec government; the result suggested, if I
understood correctly, is that with respect to these
pilots the Order would be ultra vires the powers of
the federal government. So understood, the argu
ment certainly does not hold, and it is not even
useful to consider it. The Order impugned is in no
way intended to regulate the language of public
administration in Quebec; it is intended to regulate
air navigation, an exclusive field of the federal
government. The provincial legislature has no
legislative competence in the field of aeronautics,
and it clearly could not provide, for those pilots
who are members of the Quebec civil service, rules
respecting aeronautics which differed from those
validly laid down by the competent federal author
ity. (See Johannesson, cited above.)
I have reviewed and discussed the four proposi
tions summarizing the various arguments for inva
lidity which the plaintiffs put forward against the
Aeronautical Communications Standards and
Procedures Order, made by the defendant, the
federal Minister of Transport, on August 27, 1976.
None of these propositions appears to me to be
tenable in law, and I know of no other by which
the Order could be challenged in law.
As a result, the action is without basis in law
and is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.