A-46-77
Association des Gens de l'Air du Quebec Inc.,
Roger Demers and Pierre Beaudry (Appellants)
(Plaintiffs)
v.
The Honourable Otto Lang and The Attorney
General of Canada (Respondents) (Defendants)
and
Canadian Air Traffic Control Association Inc.
(CATCA), Canadian Air Line Pilots Association
(CALPA), The Attorney General of Quebec and
Keith Spicer (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 3; Ottawa, June 27, 1978.
Crown — Aeronautics — Appeal from judgment upholding
validity of Aeronautical Communications Standards and
Procedures Order — Re aeronautical voice communications —
French authorized in certain cases but English to be exclusive
ly used in all other situations — Whether or not Order valid
— Aeronautics Act, R.S.C. 1970, c. A-3, s. 6(/),(2),(5) —
Official Languages Act, R.S.C. 1970, c. O-2, s. 2 — Canadian
Bill of Rights, S.C. 1960, c. 44 /R.S.C. 1970, App. III), s. 2
Air Regulations, SOR/61-10 as amended by SOR/69-627, s.
/04(k) — Aeronautical Communications Standards and
Procedures Order, SOR/76-551, s. 7.
This appeal is from a judgment of the Trial Division dismiss
ing the action brought by appellants primarily to have the
Aeronautical Communications Standards and Procedures
Order set aside. That Order concerned languages to be used in
aeronautical voice communications; it authorized the use of
French in certain cases but required exclusive use of English in
all other circumstances. Appellants argue that the Order is
invalid on the grounds that (1) the Aeronautics Act did not
empower the Minister to make it, (2) the Order is contrary to
the Official Languages Act, (3) even if the Minister did not
exceed his power by issuing the Order, he used this power for a
purpose not provided in the Act, and (4) the Order is dis
criminatory, contrary to the Canadian Bill of Rights.
Held, the appeal is dismissed.
Per Pratte J.: The Minister's power to issue this Order hinges
on whether or not language is a communications "procedure".
Since appellants admit that speech and vocabulary are com
munications procedures, they cannot deny that a language used
for communicating is a communications procedure. Even if
French be considered a customary official language for Quebec,
there is no contradiction between that status and the possibility
that the use of French might be prohibited in aeronautics for
safety reasons. In the Official Languages Act, "equality" is a
relative equality. That Act does not alter the Minister's power
to issue an order under the Aeronautics Act, and the prohibi
tion of the use of French in air communications, should it be
more dangerous than the use of English, does not contradict
this principle of equality. The Order does not offend the
principle of "equality before the law", in the Canadian Bill of
Rights, for it treats anglophones and francophones in the same
way. In cases specified by the Order, both are authorized to
speak French, and the provision that apart from these cases
only English is authorized applies to both groups. Although the
Minister may have yielded to union pressure by instituting this
Order, this fact neither leads to the conclusion that there was a
misuse of power, nor affects the Order's validity.
Per Le Dain J. (Hyde D.J. concurring): The power to
determine the language or languages of aeronautical communi
cations in the interest of air safety must extend to such
communications anywhere in Canada and to any language that
might be used, having regard to the international character of
aeronautics. Given the necessary scope of this power under the
Aeronautics Act it cannot be inferred from the language of the
Official Languages Act that Parliament intended that this
power should be subordinated to the provisions of the latter
Act. This would be the effect if it were held that the Official
Languages Act is to apply to the sphere of air traffic control
without regard to the responsibility under the Aeronautics Act
for air safety. It would require a very clear expression of
legislative intention to support such a conclusion.
APPEAL.
COUNSEL:
Guy Bertrand and Gilles Grenier for appel
lants (plaintiffs).
Gaspard Côté, Q.C., and Michel Robert for
respondents (defendants).
Gary Q. Ouellet for Canadian Air Traffic
Control Association Inc. (CATCH) (mis -en-
cause).
Louis Crête for Attorney General of Quebec
(mis -en-cause).
Robert Buchan and Lynn Kassie for Keith
Spicer (mis -en-cause).
SOLICITORS:
Bertrand, Otis & Grenier, Quebec, for appel
lants (plaintiffs).
Deputy Attorney General of Canada for
respondents (defendants).
Levasseur, Ouellet, Morneau, Plourde &
Lévesque, Quebec, for Canadian Air Traffic
Control Association Inc. (CATCA) (mis -en-
cause).
Attorney General of Quebec on his own behalf
(mis -en-cause).
Gowling & Henderson, Ottawa, for Keith
Spicer (mis -en-cause).
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This appeal is from a judgment of
the Trial Division' dismissing the action brought
by appellants primarily for the purpose of having
the Aeronautical Communications Standards and
Procedures Order issued by the federal Minister of
Transport on August 27, 1976 2 set aside. This
Order, which concerns the languages that may be
used in aeronautical voice communication, author
izes the use of French in certain cases and requires
exclusive use of English in all other circumstances.
Appellants maintain that the Order is invalid for
four reasons:
(a) the Minister of Transport was not empow
ered under the Aeronautics Act (R.S.C. 1970, c.
A-3) to issue it;
(b) it is contrary to the Official Languages Act
(R.S.C. 1970, c. O-2);
(c) if the Minister did not exceed his jurisdic
tion by issuing the order, he certainly used his
powers for a purpose not provided for in the Act;
(d) the Order is discriminatory and therefore
contrary to the Canadian Bill of Rights, S.C.
1960, c. 44 (R.S.C. 1970, App. III).
The Court must consider each of these argu
ments, only the first three of which were put
forward at the trial.
I—Powers of the Minister under the Aeronautics
Act
The impugned Order was issued by the Minister
under section 104(k) of the Air Regulations,
which in turn were issued under section 6 of the
Aeronautics Act.
' [1977] 2 F.C. 22.
2 SOR/76-551, Canada Gazette, September 1, 1976.
Section 6(1) of the Aeronautics Act empowers
the Minister, with the approval of the Governor in
Council, to make "regulations to control and regu
late air navigation over Canada" and, more
specifically, "such ... regulations as may be
deemed necessary for the safe and proper naviga
tion of aircraft in Canada". Section 6(2) states
that these regulations may "authorize the Minister
to make orders or directions with respect to .. .
matters coming within this section ...". Any
person who violates such an order of the Minister
is guilty of an offence and liable, in the words of
section 6(5), to "a fine not exceeding one thousand
dollars or to imprisonment for a term not exceed
ing six months or to both".
On November 8, 1969, the Minister exercised
his powers under section 6(2) and issued section
104 of the Air Regulations, 3 of which only the
following portion is relevant to the present dispute:
104. The Minister may make orders or directions prescribing
standards for the supervision and control of aeronautics . ..
and, without restricting the generality of the foregoing, may
make orders or directions prescribing standards and conditions
(k) for the standardization of communications equipment
and systems and of communications procedures used in air
navigation; ...
The Order that appellants seek to have set aside
was issued under section 104, and concerns the
languages that may be used for voice communica
tion in air navigation. Appellants claim that it
exceeds the powers of the Minister because lan
guages do not constitute "communications equip
ment and systems" or "communications proce
dures".
It goes without saying that languages are not
communications "equipment" or "systems". The
only problem is whether or not language is in fact,
as the Trial Judge held, a communications
"procedure".
Appellants state in their submission that
[TRANSLATION] In the context of section 104(k) of the Air
Regulations, the words "communications procedures" mean
"methods of communicating", for example by visual signals
such as lights or flags, in writing or by sound signals such as
3 SOR/69-627, Canada Gazette, December 24, 1969.
Morse code or other forms of language (what is known as voice
communication).
In support of this argument appellants' counsel
first said that the phrase "communications proce
dures" had a specific meaning in international air
law that excluded language. He was, however,
unable to substantiate this statement. He also
maintained that the Act must be interpreted in
such a way as to avoid giving the Minister the
right to regulate the language of air communica
tions, because it could not be presumed that the
legislator had intended to empower the Minister to
change the custom, which dated from long before
the Official Languages Act, that French was an
official language in Quebec. I am not persuaded
by this argument. Assuming that counsel for the
appellants is right in saying that custom has long
made French an official language in Quebec, I see
no contradiction between this customary status as
an official language and the possibility that the use
of French might be prohibited in aeronautics for
safety reasons. In my view, the fact that a lan
guage is official does not necessarily mean that it
may be used under all circumstances.
The phrase "communications procedures" is a
general one. Appellants admit that speech and
vocabulary are communications procedures. Since
this is the case, I fail to see how they can deny that
when language is used for communicating it also is
a communications procedure. In my view, the
Trial Judge was right to dismiss appellants' first
argument.
II—The Order and the Official Languages Act
Appellants argue that the Order issued by the
Minister of Transport is illegal because it is con
trary to the Official Languages Act, which came
into force on September 7, 1969. The main thrust
of their argument on this point is easily summa
rized. Section 2 of the Official Languages Act
states that the French and English languages pos
sess and enjoy equality of status in Canada; the
Order contradicts this principle by prohibiting the
use of French in certain cases and not prohibiting
the use of English. The two languages do not
possess and enjoy equality of status, say appel
lants, if one of them may be spoken in situations
where use of the other constitutes a criminal
offence. °
This argument appears convincing at first
glance but fails to stand up under examination.
Section 2 of the Official Languages Act and the
subtitle preceding it read as follows:
DECLARATION OF STATUS OF LANGUAGES
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.
The concept of an "official language" is rather a
vague one. It refers to the language used by the
government in its relations with the public. To say
that French and English are official languages is
simply to state that these two languages are those
which are normally used in communications be
tween the government and its citizens. In my view
the impugned Order does not contradict the first
part of section 2 of the Official Languages Act
because, as I have already said, a language may be
an official language in a country even though, for
safety reasons, its use is prohibited in certain
exceptional circumstances.
In any case, it is not on the first part of section 2
that counsel for the appellants based his argument,
but on the second part, which states that the two
languages are equal. In this connection it should
be noted that the equality proclaimed by section 2
cannot be an absolute equality, since this would
imply, among other things, that the two languages
were used with equal frequency. The equality
referred to is, as I understand it, a relative equality
requiring only that in identical circumstances the
two languages receive the same treatment. If, as
some people maintain, it was more dangerous to
use French than English for air communications in
Canada and Quebec, it seems to me that the use of
French for this type of communication could be
prohibited without contradicting the principle of
equality enshrined in section 2. The fact that it
° Appellants also claimed, although they did not insist on this
argument at the hearing, that the impugned Order was con
trary to section 10 of the Official Languages Act. The Trial
Judge dismissed this claim and I do not think anything need be
added to what he said on this point.
was more dangerous to speak French in the air
than English would be a circumstance that would
justify treating the two languages differently. For
these reasons, I do not think the impugned Order
is contrary to section 2 of the Official Languages
Act solely on the grounds that it prohibits the use
of French and allows the use of English.
I would add that in my opinion even if the Order
conflicted with section 2 it would not necessarily
follow that it was illegal. On the basis of the
Aeronautics Act alone, the Minister had the power
to issue this Order. If appellants were correct in
saying that this is no longer the case since the
passage of the Official Languages Act, the reason
for this change would have to be that the latter
Act had the effect of limiting the power to insti
tute such regulations as may be "deemed neces
sary for the safe and proper navigation of aircraft
in Canada" conferred by section 6 of the
Aeronautics Act. In my view, however, this regula
tory power (to the extent that its exercise is dictat
ed by safety requirements) remains the same after
the coming into force of the Official Languages
Act as it was before. I cannot believe that in
proclaiming the equality of French and English "in
all the institutions of the Parliament and Govern
ment of Canada" Parliament intended to limit the
power of the Minister of Transport to issue regula
tions that he deemed necessary to ensure the safety
of air navigation.
III—Did the Minister use his powers for purposes
other than those the Act provides for?
Appellants claim that the impugned Order was
issued by the Minister in order to meet the
demands of the Canadian Air Traffic Control
Association Inc. (CATCA) and the Canadian Air
Line Pilots Association (CALPA), who were refus
ing to end the strike that was paralyzing air traffic
in the country unless the Minister put a stop at
least temporarily to the use of French becoming
generalized for air communication in Quebec. In
doing so, appellants maintain, the Minister was
guilty of a misuse of power, in that a power given
him by the Act to enable him to ensure the safety
of air navigation was used by him to end a strike.
In my view, the Trial Judge was right to dismiss
this argument. The record shows only that the
Minister yielded to pressure from CATCA and
CALPA when he instituted the impugned Order.
This fact alone does not lead to the conclusion that
there was a misuse of power. Persons invested with
regulatory powers respond every day to the pres
sures of public opinion in exercising those powers.
This fact has no effect on the validity of the
ensuing actions, although their wisdom and timeli
ness may, often quite rightly, be criticized.
IV—The Order is a discriminatory measure which
is contrary to the Canadian Bill of Rights
Appellants' final argument, which they did not
put forward at the trial, is that the Order is
discriminatory and therefore contrary to the prin
ciple of "equality before the law" enshrined in
section 2 of the Canadian Bill of Rights. The
Order is discriminatory, in appellants' view,
because it permits anglophones to use their mother
tongue at all times while denying the same right to
francophones.
I fail to understand this argument. A law is
discriminatory and contrary to the principle of
equality before the law if, without good cause, it
provides that persons in identical situations shall
receive different treatment. Nothing of this kind is
involved here. The Order treats francophones and
anglophones in the same way: in the cases speci
fied by the Order, both are authorized to speak
French, and the provision that apart from these
cases only English is authorized applies to both
groups.
In fact, appellants' objection to the Order is
precisely that it gives identical treatment to per
sons who should be treated differently because
they speak different languages. I am not required
to decide whether or not this objection is a valid
one, since even if it were the Order would not for
that reason be discriminatory or contrary to the
principle of equality before the law, which, it must
not be forgotten, ensures equality of persons, not
of languages.
For these reasons I would dismiss the appeal
with costs.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: The principal attack upon the
validity of the Aeronautical Communications
Standards and Procedures Order, which prohibits
the use of French except to a certain defined and
limited extent in air traffic control, is that it is
repugnant to section 2 of the Official Languages
Act, which reads 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.
As I read section 2 it is more than a mere
statement of principle or the expression of a gener
al objective or ideal. That it is in relation to the
Official Languages Act as a whole—the expression
of the essential spirit of the Act to which reference
is made in other provisions—but it is also the
affirmation of the official status of the two lan
guages and the legal right to use French, as well as
English, in the institutions of the federal govern
ment. Other sections of the Act, such as sections 9
and 10, are concerned with what must be done by
way of implementation to make this an effective
right and a practical reality. What is chiefly
involved is the provision of sufficient bilingual
personnel in the public service to ensure that, in
the words of section 9, "members of the public can
obtain available services from and can communi
cate with it in both official languages". There are
other provisions in the Act which impose specific
duties on institutions of the Government of
Canada to give effect to the official status of the
two languages but section 2 would appear to be the
only provision from which one may derive a right
to use French, as well as English, as a language of
work as well as a language of service in the federal
government. As such, it is in my respectful opinion
more than- a merely introductory provision, but
rather the legal foundation of the right to use
French, as well as English, in the public service of
Canada, whether as a member of the service or a
member of the public who has dealings with it. Of
course, the practical implementation required to
make that an effective right is another thing. That
is the chief reason for the office of the Commis
sioner of Official Languages with the duty to
watch over compliance with the Act. The annual
reports of the Commissioner show that implemen
tation is a long and difficult process.
The issue in the present case is not really one of
implementation—the provision of sufficient bilin
gual personnel to permit air traffic control to be
conducted in French, as well as English, in the
Province of Quebec—but rather the legal right to
use French in air traffic control. Controllers and
pilots are prohibited from using French except to
the extent permitted by the Order. In sections 3 to
6 inclusive the Order defines the circumstances in
which French may be used. Section 7 reads as
follows:
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.
This is, in effect, the provision that is attacked
as being in conflict with section 2 of the Official
Languages Act. In so far as section 7 of the Order
denies the legal right to use French in the branch
of the federal government that performs the public
service of air traffic control I cannot, with respect,
see how it can be reconciled with section 2. It
appears to me to be at variance with the legal right
affirmed by that section. The question is whether
such conflict renders the Order invalid.
The Order can only be valid in these circum
stances if it has an independent source of statutory
authority that is not affected by the Official Lan
guages Act. As its preamble indicates, the Order
was made pursuant to subsection 6(2) of the
Aeronautics Act and paragraph 104(k) of the Air
Regulations. Subsection 6(2) reads as follows:
6....
(2) Any regulation made under subsection (1) may author
ize the Minister to make orders or directions with respect to
such matters coming within this section as the regulations may
prescribe.
Subsections 6(1) and 6(2) were subsections 4(1)
and 4(2) respectively of the Aeronautics Act,
R.S.C. 1952, c. 2. The Air Regulations were
adopted in 1960 (SOR/61-10, Canada Gazette,
Part II, January 11, 1961). Section 104 of the
Regulations was adopted on November 8, 1969, as
one of several amendments to the Regulations
made pursuant to the then section 4 of the Act. It
was thus part of the Regulations made under
subsection (1) of what was then section 4 and is
now section 6 and would accordingly appear to be
authorized by subsection (2) thereof. It is to be
noted that section 104 is a general authorization
covering a number of matters falling within sub
section 6(1) and not an authorization to make
orders or directions with respect to the matters
regulated in a particular section or part of the
Regulations. There are such authorizations else
where in the Regulations. It was not suggested in
argument, however, that the general or compre
hensive character of section 104 made it any less a
valid part of a regulation made under what is now
subsection 6(1) of the Act. I make these observa
tions because quite clearly subsection 6(2) was not
meant to provide a means for circumventing the
requirement of approval by the Governor in Coun
cil of regulations made by the Minister pursuant to
subsection 6(1), but no such case was made
against section 104. Paragraph (k) of that section,
which was relied on as support for the Order, reads
as follows:
104. The Minister may make orders or directions prescribing
standards for the supervision and control of aeronautics and
conditions under which aircraft registered pursuant to these
Regulations may be operated and, without restricting the gen
erality of the foregoing, may make orders or directions pre
scribing standards and conditions
(k) for the standardization of communications systems and
of communications procedures used in air navigation; ...
Paragraph 104(k) relates to matters which fall
within subsection 6(1) of the Act, as required by
subsection 6(2) thereof, and, in particular, within
paragraphs 6(1)(d) and (i), which are as follows:
6. (1) Subject to the approval of the Governor in Council,
the Minister may make regulations to control and regulate air
navigation over Canada, including the territorial sea of Canada
and all waters on the landward side thereof, and the conditions
under which aircraft registered in Canada may be operated
over the high seas or any territory not within Canada, and,
without restricting the generality of the foregoing, may make
regulations with respect to
(d) the conditions under which aircraft may be used or
operated;
(i) the institution and enforcement of such laws, rules and
regulations as may be deemed necessary for the safe and
proper navigation of aircraft in Canada, including the terri
torial sea of Canada and all waters on the landward side
thereof, and of aircraft registered in Canada wherever such
aircraft may be;
Looking at paragraph 104(k) of the Regulations
as it relates to subsection 6(1) of the Act, I am of
the opinion that it includes authority to make such
orders or directions with respect to aeronautical
communications as may be deemed necessary to
ensure safe navigation. Subsection 6(1) of the Act
does not make explicit reference to the subject of
aeronautical communications nor to the language
used in such communications, but in my opinion
this matter is necessarily comprised within the
subject of air navigation and more particularly
within the subject of safe navigation. Effective
communication is essential to safe navigation and
the language used is of the essence of effective
voice communication. I am, therefore, of the opin
ion that subsection 6(1) of the Act must be con
strued as empowering the Minister, with the
approval of the Governor in Council, to regulate
the language to be used in aeronautical communi
cations in the interest of safe navigation, and that
this is accordingly a matter in respect of which the
Minister may be authorized pursuant to subsection
6(2) to make orders or directions. I am further of
the opinion for the reasons given by the learned
Trial Judge and my brother Pratte that the lan
guage of paragraph 104(k) of the Regulations is
sufficiently comprehensive to include the language
used in voice communications. The appellants
referred to the Chicago Convention 1944 as
indicating what should be understood to have been
intended by the terms used in paragraph 104(k).
In so far as the English version of the paragraph is
concerned—"communications procedures used in
air navigation"—it may be noted that the recom
mendations of the International Civil Aviation
Organization (ICAO) in Annex 10 of the Conven
tion as to the language to be used in aeronautical
telecommunications appear in section 5.2 under
the general heading: "Radiotelephony Proce
dures". In my opinion the expression "communica-
tions procedures", just as the French version—
"méthodes de communication", refers to the
manner in which communications are conducted in
air navigation and this necessarily includes the
particular language or languages used in voice
communication.
Given then that paragraph 104(k) of the Regu
lations authorizes the Minister to make the
Aeronautical Communications Standards and
Procedures Order, it does so by virtue of the au
thority conferred by the Aeronautics Act, and it is
the relationship of that authority to section 2 of
the Official Languages Act that must be con
sidered. The two pieces of legislation, in so far as
language is concerned, deal with different subject
matter. Their purpose or object in this respect is
different. The Official Languages Act is concerned
with the recognition of French and English as
official languages. The Aeronautics Act, in so far
as language is concerned, contemplates the regula
tion of the language or languages to be used in
aeronautical communications in the interest of air
safety. While the preamble to the Order acknowl
edges the application of the Official Languages
Act to air traffic control and expresses an intention
to introduce bilingualism progressively into air
traffic control in the Province of Quebec in the
measure that it can be demonstrated to be safe, the
regulation of language effected by the Order
extends beyond the communications contemplated
by the Official Languages Act to include, for
example, communication between one pilot and
another, and it extends beyond the Province of
Quebec, as appears in section 7 of the Order which
is quoted above. It is obvious that the power to
determine the language or languages of aeronauti
cal communications in the interest of air safety
must extend to such communications anywhere in
Canada and to any language that might be used,
having regard to the international character of
aeronautics. Given the necessary scope of this
power under the Aeronautics Act it cannot be
inferred from the language of the Official Lan
guages Act that Parliament intended that this
power should be subordinated to the provisions of
the latter Act. This would be the effect if it were
held that the Official Languages Act is to apply to
the sphere of air traffic control without regard to
the responsibility under the Aeronautics Act for
air safety. It would require a very clear expression
of legislative intention to support such a conclu
sion. In reaching this conclusion I do not make any
assumption as to the actual effect on air safety of
bilingualism in air traffic control. It may well be,
as suggested by section 6 of the Order and the
Interim Report of the Commission of Inquiry
established to study this question, that bilingual-
ism in certain locations and under certain circum
stances will increase air safety. It is sufficient to
conclude, as I do, that the Order exhibits a bona
fide concern with air safety and is thus a bona fide
exercise of the regulatory authority in relation to
the language of aeronautical communications that
must be held to exist under the Aeronautics Act.
I agree with the reasons of my brother Pratte for
rejecting the other contentions of the appellants.
For the foregoing reasons I would dismiss the
appeal with costs.
* * *
HYDE D.J.: I have had the advantage of reading
the reasons of Mr. Justice Le Dain and I share his
opinion; consequently, I would dismiss the appeal
with costs.
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.