On December 12, 2011, Chief Justice Blais of the Federal Court of Appeal of Canada (“FCA”) granted a suspension (a “stay”) of a rare structural injunctive order, pending an appeal commenced by Air Canada (click here for decision).
The Plaintiffs, Michel and Lynda Thibodeau, had initially logged eight complaints with the Commission of Official Languages concerning the lack of bilingual services on eight different Air Canada flights. Due to its former Crown Corporation status, and unlike other Canadian airline carriers, Air Canada is required to comply with the Official Languages Act (the “Act”).
At trial, the Federal Court of Canada ruled that the airline failed to comply with the Act’s requirement for the provision of bilingual services on four separate occasions, and in accordance with the July 13, 2011 judgment, Air Canada provided the Thibodeaus with a letter of apology and $18,982.10 for costs and damages (click here for decision).
On September 28, 2011, Air Canada filed a notice of appeal. On October 28, 2011, Air Canada filed a motion for a stay of the second and third paragraphs of the trial order, which required Air Canada to:
2. make every reasonable effort to comply with all of its duties under the Act; and
3. introduce, within six months of the trial judgment, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its statutory language duties, particularly by introducing a procedure to identify and document occasions on which Jazz does not assign flight attendants able to provide services in French on board flights on which there is a significant demand for services in French;
In considering Air Canada’s motion for a stay, the FCA applied the seminal three-part test set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311 requiring Air Canada to demonstrate that:
(a) there is a serious question to be determined;
(b) irreparable harm will result if the stay is not granted; and
(c) the balance of convenience favours Air Canada.
This branch of the test was easily satisfied both by the “exceptional nature” of the trial order and the admissions of the respondents.
This is interpreted to mean “harm which either cannot be quantified in monetary terms or which cannot be cured…” (RJR-MacDonald, at para. 59). The FCA concluded that the obligations imposed under the appealed provisions of the order constituted a “structural injunction”, under which Air Canada would suffer irreparable harm.
In coming to this conclusion, Chief Justice Blais highlighted the exceptional nature and vagueness of paragraph 2 of the trial order:
“Structural injunctions are few and far between in Canada … In the present case, the order requires Air Canada to make every reasonable effort to comply with the Act, not the order. Indeed, as stated in Air Canada’s submissions at paragraph 9, there was no need to make an order to make every reasonable effort to comply with the Official Languages Act because the Act is in itself an injunction to comply with the standards set out in its provisions. …The vagueness of this part of the order leads me to conclude that it is preferable to stay its application until such time as the Court of Appeal rules on its merits and scope.” (paras. 19, 21-2).
Air Canada also successfully argued that the first part of the third paragraph of the order was overly vague and would require the airline to reallocate exorbitant amounts of personnel and fiscal resources. The FCA concluded that compliance with this part of the order would also cause irreparable harm to Air Canada. If the appeal was successful, it would be impossible to return to the way things were before compliance with the order:
“Air Canada would have difficulty not only meeting the requirements of a vague order, but also, if victorious on appeal, dismantling a system that no doubt would have taken months to set up.” (para. 38)
Balance of convenience
Lastly, Chief Justice Blais concluded that the public interest would not be compromised by a stay and noted the lack of urgency given the historically low rate of complaints logged against Air Canada under the Act.
As a result, a stay of paragraphs 2 and 3 of the trial order was granted. However, the validity of the so-called structural injunction will be a focus of review on appeal and the FCA will have to determine whether the trial judge erred in making a general order to comply with the Act.