Federal Appeal

Air Law

Structural order not solution that was effective, realistic, and adapted to facts

This was appeal of judgment. Respondents brought application under s. 77(1) of Official Languages Act (Can.), for alleged violations of language rights that occurred during course of international air flights. Respondents complained that on two separate trips between Canada and United States appellant did not offer them service in French they were entitled to at each point of service in itinerary. Judge found appellant breached duties under Part IV of Act. Appellant was ordered to issue letter of apology; make every reasonable effort to comply with all duties under Part IV of Act; introduce proper monitoring system and procedures to quickly identify and document potential violations; pay damages of $6,000 to each respondent; and pay costs of $6,982. Appeal allowed. Appellant conceded that it was subject to Part IV of Act. Convention for the Unification of Certain Rules Relating to International Carriage by Air incorporated under Carriage by Air Act (Can.), Schedule IV (Montreal Convention), came into play once incident or situation occurred during international carriage and it set out causes of action that might give rise to compensation and compensable types of damage. Properly construed, legislative instruments could be harmonized and could both be applied concurrently without producing unreasonable result. Article 29 of Montreal Convention precluded award of damages for causes of action that were not specifically provided for and constituted complete code respecting aspects of international air carriage it expressly regulated, such as air carrier’s liability for damages, regardless of source of liability. Article 29 of Montreal Convention excluded respondents’ action in damages brought under Part IV of Act for incidents that occurred during international carriage. Judge was not entitled to issue general order against appellant to comply with Part IV of Act, as order was too vague. Structural order was not justified based on evidence. It was imprecise and disproportionate to prejudice suffered by respondents. Structural order was not solution that was effective, realistic and adapted to facts of case. Order went much further than was needed to remedy violation of respondents’ language rights and was not just and appropriate remedy. Declaration against appellant, letter of apology and damages for incident that occurred at airport was just and appropriate remedy in circumstances.

Thibodeau v. Air Canada (Sep. 25, 2012, F.C.A., Pelletier, Gauthier and Trudel JJ.A., File No. A-358-11) Decision at 218 A.C.W.S. (3d) 823 was reversed. 220 A.C.W.S. (3d) 538.

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