Air Canada failed to provide services in French on some
international flights as it was obliged to do under the Official Languages
Act (“Act”). Michel and Lynda Thibodeau, two Air Canada
passengers, applied to the Federal Court for damages and for orders requiring
Air Canada to take steps to ensure future compliance with the Act. Air
Canada defended the claims for damages by relying on the limitation of damages
liability set out in the Convention for the Unification of Certain Rules for
International Carriage by Air (the “Montreal Convention”) which is
part of Canadian Federal law by virtue of the Carriage by Air Act.
The Federal Court rejected Air Canada’s defence, awarded
damages to the Thibodeaus and granted a “structural” order. However, the
Federal Court of Appeal set that ruling aside in part, holding that the
Montreal Convention precluded the damages remedy for the events that took place
on board Air Canada flights. It also held that a structural order was not
appropriate. The Thibodeaus appealed to the Supreme Court of
Canada.
In a 5 to 2 decision, the Supreme Court of Canada dismissed
the appeal – Thibodeau v. Air Canada, 2014 SCC 67. The majority
decision was written by Mr. Justice Cromwell.
The Court held that the Montreal
Convention’s uniform and exclusive scheme of damages liability for
international air carriers does not permit an award of damages for breach of
language rights during international carriage by air. To hold otherwise
would “do violence” to the text and purpose of the Montreal Convention, apart
from Canada’s international obligations under the convention and put Canada
off-side a strong international consensus concerning its scope and effect.
The general remedial powers under the Act to award "appropriate and just"
remedies cannot, and should not, be read as authorizing Canadian courts to
depart from Canada’s international obligations under the Montreal
Convention.
The court held that two of the main purposes of the Montreal
Convention are to achieve a uniform set of rules governing damages liability of
international air carriers and to provide the limitation of carrier
liability. These purposes can only be achieved if the Montreal
Convention provides the exclusive set of rules in relation to the matters that
it covers. The Montreal Convention does not deal with all aspects of
international carriage by air, but within the scope of the matters which it
does address ,it is exclusive in that it bars resort to other basis for
liability in those areas.
The claims before the Supreme Court fell squarely within the
exclusion established by the Montreal Convention. The key provision
(Article 29) makes clear that the Montreal Convention provides the exclusive
recourse against airlines for various types of claims arising in the course of
international carriage by air. Article 29 establishes that in relation to
claims falling within the scope of the Montreal Convention, “any action for
damages, however founded” may only be brought “subject to the conditions and such
limits of liability as are set out in this Convention”.
The court rejected the Thibodeaus argument that the
Montreal Convention does not limit claims for damages sought in relation to
public law claims or breaches of quasi-constitutional statutes. It held
that such argument had no support in the text or purpose of the convention or
in international jurisprudence. The Thibodeaus claims were an “action
for damages” within the meaning of Article 29 as they claimed damages for
injuries, namely moral prejudice, pain and suffering and loss of enjoyment of
their vacation, suffered in the course of an international flight.
The court held that the Montreal Convention is part of an
internationally agreed upon uniform and exclusive scheme addressing the damages
claimed in the field of international carriage by air. The remedial
provisions in the Act cannot be understood to be an exhaustive code that
requires damages to be available in all settings and without regard to all
relevant laws. The Act does not provide that damages should be granted in
every cases but authorizes courts to grant “appropriate and just” remedies.
The power to grant such a remedy can be reconciled with a specific and
limited exclusion of damages in the context of international air travel.
Regards,
Blair
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