Year in Review: Thibodeau v. Air Canada – The Exclusivity of the Montreal Convention

Michel and Lynda Thibodeau (the “Thibodeaus”) launched several complaints before Canada’s Commissioner of Official Languages (the “Commissioner”) alleging that Air Canada had contravened its obligations under the Official Languages Act (“OLA”) to provide services in French. They alleged that on two trips they made in 2009, Air Canada had failed to offer services in French at check-in counters, boarding gates and aboard flights on which there was significant demand for services in French, and that it made passenger announcements only in English.

The Commissioner found that all but two of the complaints had merit. The matter then proceeded before the Federal Court of Canada, which awarded $6,000 in damages to each of the Thibodeaus, representing $1,500 per violation. The Federal Court also ordered Air Canada to provide the Thibodeaus with a letter of apology, to make every reasonable effort to comply with its obligations under the OLA, and to introduce a monitoring system to quickly identify potential violations. The Federal Court of Appeal then allowed Air Canada’s appeal, in part, concluding that the appellants could not recover damages for the three violations which occurred during international carriage, as the Montreal Convention (a treaty governing airlines’ liability during international flight) precluded the awarding of such damages. The Federal Court of Appeal further allowed Air Canada’s appeal, in part, concluding that the lower court had erred in making a structural order (the general order to comply with the OLA).

On appeal to the Supreme Court of Canada, the Thibodeaus argued that the scope of the Montreal Convention did not limit their claim, or claims for compensation for public law claims, or claims for breach of statute or fundamental rights, such as language rights. They further argued that the Montreal Convention and OLA conflicted with each other, and that the OLA should prevail.

The Supreme Court found that there was no conflict between the general remedial powers of the OLA and the exclusion of damages under the Montreal Convention, and so it was not necessary to consider which would “prevail” if there were a conflict. The Montreal Convention provides for remedies in cases of an accident causing the death or bodily injury of a passenger on board the aircraft or in the course of embarking or disembarking (Article 17); in case of destruction or loss of, or of damage to, baggage while in the charge of the carrier (Article 17); in the event of the destruction or loss of, or damage to, cargo during carriage (Article 18); and for damage occasioned by delay (Article 19).  It 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 bases for liability in those areas.  Since the OLA simply authorized the granting of “appropriate and just” remedies, the Supreme Court simply found that it would not be “appropriate and just” if such an award would constitute a breach of Canada’s international obligations under the Montreal Convention.

The Supreme Court majority upheld the decision of the Federal Court of Appeal, and ruled that it was correct to set aside the structural order because it was impermissibly vague and unclear.

The dissenting opinion of the Supreme Court would have permitted the award of damages pursuant to the OLA and endorsed a limited scope of exclusivity for the Montreal Convention.  The dissent was of the view that the Montreal Convention should only govern those actions brought for damages incurred “[i]n the carriage of passengers, baggage and cargo”, namely, actions covered by Articles 17 (injury/death/baggage), 18 (cargo) and 19 (delay). Since the Thibodeaus’ action did not fall within the parameters of the Montreal Convention, the dissent would have allowed them to recover damages for breach of language rights during international carriage.

Click here to view the full text of the Supreme Court of Canada decision.