Supreme Court

Air Law

Canada’s international undertaking to guide court in determining appropriate and just remedy

Respondents brought application under Official Languages Act alleging that appellant breached linguistic duties by failing to offer them service in French on international flights. Respondents sought declaration, letter of apology, damages and structural order. Judge found appellant breached duties by failing to offer services in French on flights where there was significant demand for same; failing to translate announcement by pilot in English; and in making announcement regarding baggage collection at Toronto airport in English only. Appellant ordered to issue apology; make reasonable effort to comply with duties; introduce monitoring system to identify and document potential violations; pay damages to each respondent; and pay costs. Federal Court of Appeal allowed appeal and respondents’ appeal dismissed. Montreal Convention does not permit award of damages for breach of language rights during international carriage by air. General remedial power under act to award appropriate and just remedies cannot give Canadian courts authorization to depart from international obligations. Montreal Convention provides exclusive recourse for claims arising in course of international carriage by air. Article 29 establishes that for claims within scope of convention, “any action for damages, however founded” may only be brought subject to conditions and limits of liability as set out in Convention. Exclusivity of convention’s liability scheme excludes actions arising from injuries suffered by passengers for actions not otherwise falling within scheme of permitted claims. Respondents’ claims are “action for damages” within meaning of Article 29. Claim for damages to compensate for moral prejudice, pain and suffering and loss of enjoyment of vacation not relating to death or bodily injury not permitted. Overlap but no conflict between general remedial powers under Act and exclusion of damages under convention. Provisions have markedly different purposes and touch on distinct subject matters. Power to grant appropriate and just remedy under act can be reconciled with specific and limited exclusion of damages in context of international air travel. Parliament did not intend courts to grant damages when doing so would violate Canada’s international undertakings. Canada’s international undertakings to guide court in determining appropriate and just remedy. Structural order too imprecise and risked ongoing litigation and court supervision in relation to compliance.

Thibodeau c. Air Canada (Oct. 28, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Karakatsanis J., and Wagner J., File No. 35100) Decision at 220 A.C.W.S. (3d) 538 was affirmed.  245 A.C.W.S. (3d) 460.

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