St. John's airport appeals language decision, says rules are tougher for privatized airports

Newfoundland and Labrador's largest airport authority says a recent Federal Court decision makes official language rules more stringent at privatized airports than at those operated by the federal government.

The St. John's International Airport Authority is appealing the judgment, which could have wide-reaching consequences for airports across the country.

In April, Judge Sébastien Grammond ruled the airport authority must communicate in English and French not just with travellers at the airport, but also potential travellers — meaning all messaging and documents available to the general public have to be translated.

He ordered the airport authority to pay $11,000 to Michel Thibodeau, a retired civil servant based in Ottawa who filed a series of complaints with the federal commissioner of official languages because the airport failed to translate its annual reports, social media posts and parts of its website.

Translation rules expanded

Although lapses frequently occur, it is widely accepted that airports with more than a million travellers per year or situated in a provincial capital must offer bilingual services to the "travelling public," according to the Official Languages Act. 

In his decision, Grammond not only expanded the definition of "travelling public" beyond people who are at the airport to board a flight but also ruled the airport authority's administrative offices should be considered a "head office" of a "federal institution," as set out by the act.

That means it must respect the same official language rules as the headquarters of federal departments. Any information made public, from press releases to annual reports, must be translated, regardless of local demand.

'This conclusion was an error in law'

The airport authority says airports are exempted from the "head office rule" by the Airport Transfer Act, a law adopted in the 1990s, when Ottawa privatized a number of government-run airports.

"This conclusion was an error of law. Parliament never intended to impose such a requirement," reads a submission to the Federal Court of Appeal by the airport authority. "If every privatized airport has a head office, then the OLA obligations of privatized airports would exceed those of the airports which remain under Transport Canada's operation."

At government-run airports, the factum says, local administrative offices aren't covered by the "head office" rule because their headquarters is the main Transport Canada office in Ottawa.

"At government-run airports, there would be no 'head office' at that airport, the head office rule would not apply, and bilingual communication obligations would be determined by significant demand only," reads the submission.

Lisa Bragg, the airport authority's vice-president of business development and marketing, said her organization has a small communications staff and she worries about the administrative burden of the ruling.

"The outcome of this case is really important for a lot of different organizations and we all want to do what is fair, but we also just want to do what's reasonable," she said Monday.

Who should receive damages?

In its submission, the airport authority also argues that Thibodeau, who hadn't set foot in the airport at the time he filed the complaints, shouldn't receive damages because his personal language rights were never breached. 

It also said that certain translation problems had been corrected by the time it learned of Thibodeau's complaints.

A self-described advocate for official languages, Thibodeau has become a thorn in the side of many airports, spending countless hours submitting hundreds of complaints and seeking thousands in damages. In a separate Federal Court case, the Edmonton Regional Airport Authority described him as a "serial complainant" looking to "monetize" his language rights.

In his ruling, Grammond rejected the airport's arguments, writing, "An award of damages is an appropriate and just remedy to ensure deterrence and vindication of the rights flowing from the act. 

"Neither the circumstances in which Mr. Thibodeau discovered the breaches of the act nor [the airport authority's] alleged efforts to comply with the Act are a bar to an award of damages."

In September, Thibodeau launched another case against the airport authority involving a series of other official language violations. He was not available for comment.

A 'chilling effect' on communications

Several airports and port authorities are closely following the appeal, and the Canadian Airports Council, the Association of Canadian Port Authorities and the commissioner of official languages have asked to appear as intervenors. 

In a statement last April, Commissioner Raymond Théberge said in a tweet he was "very pleased" with the decision and that the court had "clarified, once and for all, the language obligations of airports and airport authorities under the Official Languages Act when they communicate with the public."

In an affidavit, ACPA president and CEO Daniel-Robert Gooch said the ruling, if upheld, could have a "chilling effect on both the quality and the amount of information made available" to the public in the context of "scarce resources."

He said the decision could "impose upon all local port authorities the same requirements as the headquarters of a large government department."

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