b) Federal Court decision
Based on Air Canada’s admissions, the Federal Court concluded that the airline had violated the OLA and considered possible remedies.
Regarding the damages claimed by the Thibodeaus, Air Canada submitted that the Court’s power to grant a remedy is limited by the Montreal Convention, which excludes any possibility of awarding damages for the breaches that occurred during the international flights. The Court concluded that there was a conflict between section 77(4) of the OLA, which states that the Court may grant such remedy as it considers appropriate and just in the circumstances, and the Montreal Convention. In the Court’s opinion, despite the broad interpretation given to the Montreal Convention international case law, section 77(4) of the OLA must prevail over the Convention. The Court referred to section 82(1) of the OLA, which states that Part IV of this act prevails over any other Act of Parliament or regulation thereunder in the event of any inconsistency. By enacting this provision, the legislator established the primacy of the remedy provisions in the OLA, which allow sanctions to be imposed for breaches of the duties set out in Part IV of the OLA. By giving precedence to section 77(4) of the OLA, the Court gives effect to its quasi-constitutional nature. Furthermore, the Court added that departing from the Montreal Convention does not compromise Canada’s international obligations, because the OLA does not affect any other carrier subject to the Montreal Convention.
The Court then looked at the question of the institutional orders that the Thibodeaus requested against Air Canada. It concluded that the evidence provided by the Thibodeaus demonstrated that, despite Air Canada’s efforts to comply with its language obligations, problems persist and the carrier has not implemented the procedures required to comply with its obligations under the OLA. The Court therefore ordered Air Canada to make every reasonable effort to respect all of its obligations under the OLA and to introduce a proper monitoring system to identify, document and quantify potential violations of its language obligations.