Supreme Court of Canada Rules in Favour of Montreal Convention Exclusivity

Written on November 14, 2014.

Perhaps 7-Up and Sprite are the same after all.

While travelling on an Air Canada flight from Charlotte to Toronto, Lynda Thibodeau ordered a 7-Up soda in French. The flight attendant, who spoke only English, gave her a Sprite instead. This and several other incidents led Lynda Thibodeau and her husband Michel to bring a legal action against the airline, seeking damages for the breach of Canada’s Official Languages Act (OLA). The Thibodeaus were successful in the court of first instance. Air Canada was ordered to apologize and to pay $12,000 in damages. The Federal Court of Appeal disagreed, and the Thibodeaus then appealed to the Supreme Court.

It turned out this was no ordinary prosecution for breach of a federal statute as the alleged offensive acts or omissions of Air Canada took place when the Thibodeaus were engaged on journeys of international travel by air.

At trial, the court found that the airline had failed to provide services in both official languages on at least four occasions. There was no bilingual flight attendant on board the Thibodeau’s flight from Toronto to Atlanta in 2009. The Captain failed to make an announcement in both official languages when they returned from Atlanta a few days later. A few months later, service was not available in both official languages on a flight from Charlotte to Toronto, and, when they landed, a baggage collection announcement was made only in English.

The OLA requires Air Canada, alone among Canadian airlines, to provide services in both English and French to its passengers. The Thibodeaus sought damages for the airline’s breach of its statutory obligations for moral prejudice, pain and suffering, and loss of enjoyment of their vacation.

Air Canada, which operates air services throughout the world, took issue with the contentions of the prosecution. It argued that its domestic official language obligations did not extend to the airline’s international operations and contended that no OLA cause of action could be maintained since it was not recognized by the Montreal Convention, an international treaty to which Canada is a party. In other words, Air Canada took the position that the Thibodeaus could not recover damages unless the convention recognized their claims.

In fact, the Montreal Convention provides a code of laws governing the rights and obligations of airlines and their passengers when on journeys of international carriage by air. At the same time, as discussed above, the OLA allows aggrieved persons to recover damages from obligated parties that fail to provide services in both official languages. This apparent conflict gave rise to the question of what happens when the offending acts or omissions of the carrier take place during the international carriage by air of the aggrieved parties.

In the result, in Thibodeau v. Air Canada, 2014 SCC 67, the Supreme Court of Canada agreed with Air Canada’s position. Writing for the majority, Justice Cromwell held that the Montreal Convention does not permit an award of damages to be made against the airline for breaching its language obligations to passengers travelling on international journeys of carriage by air.

Justice Cromwell found his way through what might appear to be a direct conflict by initially noting that the OLA and the Montreal Convention have markedly different purposes. The convention contains an internationally agreed upon uniform and exclusive code of laws that restricts the types of claims for damages that may be brought against carriers. It allows claims for death or bodily injury, destruction, damage or loss of baggage and cargo, and delay, but effectively bars all other actions for damages.

On the other side of the fence, the OLA remedies cannot be considered an exhaustive code of laws that require damages to be available in all settings without regard to all other relevant laws. He observed that Parliament did not intend to prevent the act from being read harmoniously with Canada’s international obligations as they may be incorporated into Canadian statute law. The OLA should be understood as having been enacted into an existing legal framework, which includes statutory limits, procedural requirements, and a background of general legal principles.

Justice Cromwell, therefore, held that the OLA and the Montreal Convention do not conflict and, in so ruling, reinforced the primacy given to our international obligations.

He went on to observe that the OLA has the power to grant an “appropriate and just” remedy. This can be reconciled with the exclusion of damages for international air travel under the Montreal Convention since a remedy is not “appropriate and just” if the award would result in Canada being in breach of its international obligations.

On reflection, it is apparent that for Justice Cromwell to hold otherwise would have made the Montreal Convention subordinate to domestic legislation, thereby undermining one of the treaty’s main purposes of bringing uniformity across jurisdictions. It would also have been a departure from Canada’s international obligations while placing Canada firmly on the wrong end of a strong current of international jurisprudence holding that actions for damages relating to matters falling within the scope of the convention can only be pursued if they are specifically permitted under its provisions.

In concluding that the Thibodeaus’ language rights action does not fit within the scope of the Montreal Convention, Justice Cromwell observed that the treaty does not deal with all aspects of international air carriage, but bars resort to other bases for liability that it does not address.

The ruling is important in that puts to rest any question of whether Canada would follow suit with U.S., U.K. and other foreign Courts upholding the exclusivity of the Montreal Convention. Canada is now very much in line with the international judicial consensus on this important issue.