Thibodeau v Air Canada (2012)

Language rights and services to the public
Federal Court of Appeal
2012 FCA 246
Province or Territory: 

The Federal Court of Appeal determines the status of the Official Languages Act (OLA) in relation to an international agreement incorporated into domestic law.

a) Background

Michel and Lynda Thibodeau (the Thibodeaus) applied for a remedy pursuant to section 77(1) of the OLA for violations of their language rights on international air flights. At trial, the Federal Court emphasized the quasi-constitutional status of the OLA and awarded the Thibodeaus damages as a remedy for the breaches of the Act. The Federal Court also held that the breaches committed by Air Canada were systemic in nature and issued structural orders against the airline.

b) Federal Court of Appeal decision

On the question of damages, the Federal Court of Appeal disagreed with the Federal Court regarding the presence of a conflict between the two laws. The Court of Appeal pointed out that section 77(4) of the OLA confers the power to grant an appropriate remedy for each breach of the Act, and it stated that article 29 of the Montreal Convention is a factor that the applications judge must take into account when determining a just and appropriate remedy. Thus, according to the Court, section 77(4) is flexible enough to allow an interpretation reconciling its objectives with those of the Montreal Convention. In the Court’s opinion, this approach does not weaken the quasi-constitutional nature of the OLA, because it does not deprive the Thibodeaus of their rights and remedies under the OLA; however, they are not entitled to damages of any kind where the Montreal Convention has full force. The Court of Appeal therefore quashed the order awarding damages to the Thibodeaus.

Regarding the institutional order issued by the applications judge, the Court of Appeal concluded that it was not justified in light of the evidence on record. The institutional order was also deemed imprecise and disproportionate in relation to the prejudice suffered by the Thibodeaus, and not founded on a careful review of the facts of the case and the relevant legal principles, particularly the criteria set out by the Supreme Court of Canada in Doucet-BoudreauFootnote 1. This order was therefore quashed.


Footnote 1

Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62.

Return to footnote 1 referrer

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