The 1988 Air Canada Public Participation Act(1) set conditions for the privatization of Air Canada. Along with transitional measures leading to government divestiture, the Act sought to ensure that Air Canada would continue to operate in both French and English by making the newly privatized corporation subject to the Official Languages Act(2) (the OLA). A further provision required Air Canada to maintain its head office in Montréal, and operational centres in Winnipeg, Montréal, and Mississauga.
Air Canada is subject to the Official Languages Act in its entirety. The Act compels Air Canada not only to provide communications and service to the public in both official languages (Part IV of the OLA)(3) but also to maintain a bilingual workplace (Part V).(4) In addition, Air Canada is subject to provisions that ensure equal opportunities for employment and advancement, as well as a requirement that its workforce reflect the presence of both official language communities (Parts VI and VII).
After Air Canada acquired Canadian Airlines, the regional carriers of the two airlines were amalgamated into Air Canada Jazz. In 2000, Parliament passed amendments to the Air Canada Public Participation Act that ensured that Air Canada’s subsidiaries, such as Jazz and ZIP, would provide service to the public in both official languages. These subsidiaries are subject only to Part IV of the Official Languages Act, which requires customer service in both official languages, where numbers warrant.
In September 2004, Air Canada emerged from bankruptcy protection under the Companies’ Creditors Arrangement Act. While in bankruptcy protection, Air Canada underwent substantial restructuring that resulted in the formation of new corporate entities. Air Canada itself became a wholly owned subsidiary of a newly created parent company, ACE Aviation Holdings Inc. Several internal divisions and former subsidiaries of Air Canada were spun off into limited partnerships under the direct or indirect control of ACE Aviation.(5) While the Air Canada Public Participation Act continues to apply to Air Canada itself, ACE Aviation and the new corporate entities it owns are not currently subject to official language obligations.
The Minister of Transport, the Honourable Jean Lapierre, tabled Bill C-47, An Act to amend the Air Canada Public Participation Act(6) (the Act) in the House of Commons on 2 May 2005. The Act amends existing legislation to ensure that Air Canada’s successor corporations are subject to official language requirements. The Act also obliges ACE Aviation Holdings, the parent company that now controls Air Canada and its subsidiaries, to retain its head offices in Montréal.
Clauses 1 to 4 of Bill C-47 rename the Air Canada Public Participation Act the Air Canada and Its Affiliates Act,and make housekeeping amendments that change the arrangement of the Act.
Clause 5 of Bill C-47 adds a new section 10.2 to the Air Canada Public Participation Act. Section 10.2(1) is a blanket clause stating that the Official Languages Act applies to all Air Canada affiliates that come within the legislative authority of the federal government in respect of aeronautics.
Sections 10.2(2) to 10.2(3) institute limitations to the blanket application of the Official Languages Act. As previously stated, Part IV of the OLA requires an entity to offer customer or consumer services in both official languages. Parts VIII, IX, and X set out enforcement mechanisms, such as investigations and court remedies, under which an entity can be taken to task for breach of Part IV. Only Parts IV, VIII, IX and X of the Official Languages Act apply to:
Section 10.2(4) sets out a number of other exceptions to the blanket application of the OLA. Official language requirements for affiliates do not apply at all to some entities.
Section 10.2(5) defines affiliation, and control of affiliates. An affiliate is a corporation controlled by another corporation, or controlled by the same parent. The term affiliate includes partnerships along with corporations. Control means over 50% of the voting shares and control of the board of directors of the affiliated corporation or partnership.
The Air Canada Public Participation Act currently requires Air Canada’s head office to be located in Montréal. Section 10.3 extends this requirement to ACE Aviation, the holding company that now controls Air Canada.
Under section 10.3, the articles of incorporation of ACE Aviation are deemed to contain provisions requiring ACE Aviation to ensure that a member of the public can communicate and obtain services in either official language from both the head office and any other office where there is a significant demand for bilingual services. The articles of incorporation are also deemed to include a provision requiring the company to have its head office in Montréal.
Section 10.4 prevents ACE Aviation from applying for continuance in another jurisdiction, meaning that the company is required to be incorporated under the Canada Business Corporations Act. ACE Aviation may not change its articles or by-laws to be inconsistent with the head office and language requirements outlined above.
Clause 6 of the bill is a transitional provision stating that unresolved complaints made under the Official Languages Act against Air Canada or its subsidiaries before the restructuring will continue to apply to its successor corporations.
Bill C-47 does not impose any new obligations on Air Canada. The bill maintains the status quo by making Air Canada’s new corporate structure following bankruptcy subject to the same requirements as previous incarnations of the airline.
There has been considerable controversy over official language requirements imposed on Air Canada. Air Canada’s obligations have been subject to two reviews by parliamentary committees, in 2002 and again in 2004.
In February 2002, the Standing Joint Committee on Official Languages tabled a report entitled Air Canada: Good Intentions Are Not Enough! The report found that Air Canada was not fully meeting its official language obligations and made 16 recommendations for changes that would ensure compliance with the OLA. Among the recommendations were proposals that Air Canada be provided with federal government financial assistance for language training and that the Air Canada Public Participation Act be amended so that the OLA would take precedence over collective agreements. The Canadian Alliance members of the committee issued a minority report that concluded that official language requirements hampered Air Canada’s ability to compete with other airlines, and recommended that all OLA provisions be removed from the Air Canada Public Participation Act.
In 2004, the House of Commons Standing Committee on Official Languages again heard witnesses on official language issues related to Air Canada. In testimony before the committee, Air Canada claimed that the official language requirements were problematic in a number of ways:
Air Canada therefore requested that the Government of Canada act on the recommendations previously made by the Joint Committee on Official Languages in its 2002 report, and:
In response to this request, some members of the House of Commons committee pointed out that Air Canada knew it would be subject to official language requirements before acquiring Canadian Airlines, and should have factored its costs into the acquisition.(11)
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both Houses of Parliament, receive Royal Assent, and come into force.
(1) R.S. 1985, c. 35 (4th Supp.).
(2) R.S. 1985, c. 31 (4th Supp.).
(3) The scope of Air Canada’s obligations is specified in the Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48. Generally, in-flight services must be provided in both official languages on any route that starts, has an intermediate stop or finishes at an airport located in the National Capital Region, the Montréal metropolitan area or the City of Moncton, or between cities in provinces that have a linguistic minority of at least 5%. Ground services must be provided in both official languages at airports that serve at least 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 are subject to the same regulations as apply to offices serving the general public.
(4) Under Part V of the Act, Air Canada must provide its employees with personal and central services, and regularly used work instruments, in both official languages in designated bilingual regions.
(5) As of 30 September 2004, ACE became the parent holding company of the reorganized Air Canada and each of its subsidiaries. In addition to Air Canada itself, ACE took control of Aeroplan, Jazz, Destina and Air Canada Vacations (Touram), which were already separate legal entities. Air Canada Technical Services (ACTS), AC Cargo, Air Canada Ground Handling Services and AC Online were established as stand-alone limited partnerships under ACE. Jazz was reorganized into Jazz Air Limited Partnership. Source: ACE Aviation 2004 Annual Report, p. 7.
(6) 1st Session, 38th Parliament, 53-54 Elizabeth II, 2004-2005.
(7) There is some debate as to whether Aeroplan is in fact an “incidental” air service under section 10(10) of the Air Canada Public Participation Act and therefore subject to official language requirements. The Official Languages Commissioner seems to believe Aeroplan is subject to the OLA, and has investigated complaints against Aeroplan, although they were stayed when Air Canada entered bankruptcy. The courts have yet to rule on whether the Act applies to Aeroplan.
(8) Standing Joint Committee on Official Languages, Air Canada: Good Intentions Are Not Enough! February 2002.
(9) House of Commons Standing Committee on Official Languages, Evidence, 1st Session, 38th Parliament, 25 November 2004, at 0910.
(10) Ibid., at 0915.
(11) Section 30 of the OLA requires bilingual communications with the public. Air Canada cited the cost of minority language advertising, which is required by the OLA even when there is no economic reason to do so, as an example of an unequal playing field. Ibid., at 0920.
(12) Ibid., at 0950.
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