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Air Canada Passengers Can’t Sue for Airline’s Failure to Provide French Language Services

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.