In Thibodeau v Air Canada, the Supreme Court of Canada held that the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) precludes awarding damages under section 77 of the Official Languages Act (OLA) for violations of language rights that occurred during international travel by air. The Court also held that the remedy of a structural order against Air Canada was not warranted in this case.
Mr. and Ms. Thibodeau did not receive services in French on three international flights with Air Canada Jazz in 2009 as well as in the airport on one occasion. They filed eight complaints each with the Office of the Commissioner of Official Languages under Part IV of the OLA, four of which were deemed founded for each of them. They then applied to the Federal Court, under section 77 of the OLA, for a remedy that included both damages for the breaches of their rights as well as a structural order against Air Canada for the systemic violation of passengers’ language rights. The Commissioner of Official Languages intervened in the instances below and was recognized as an appellant before the Supreme Court of Canada.
b) Federal Court and Federal Court of Appeal decisionsFootnote 1
The Federal Court agreed that Mr. and Ms. Thibodeau’s language rights were indeed violated on four occasions. Air Canada argued that damages were unavailable due to the fact that the injury suffered by the Thibodeaus occurred over the course of international travel by air, which is governed exclusively by the Montreal Convention. The Federal Court, however, found that there was a conflict between the power to award damages under section 77(4) of the OLA and the limitation of damages of the Montreal Convention. The judge concluded that the OLA must prevail in cases of conflict and decided that the Thibodeaus were entitled to both damages and a structural order for the “
systemic problem at Air Canada.” The airline was ordered to put in place a monitoring system to “
quickly identify, document and quantify potential violations of its language duties”.
The Federal Court of Appeal set aside both the award of damages and the structural order. In setting aside the damages, the Court found that there was no conflict between the Montreal Convention and the OLA. In determining what remedy is “
appropriate and just” under section 77(4) of the OLA, the Court must take into account that the Montreal Convention applies and excludes the availability of damages. The Court also concluded that the structural order was not warranted in the circumstances due to there being insufficient evidence of a systemic problem and due to the vagueness of the Federal Court order. Both the Commissioner of Official Languages and Mr. and Ms. Thibodeau appealed the decision of the Federal Court of Appeal.
c) Supreme Court of Canada decisionFootnote 2
The question of whether or not the language rights of the Thibodeaus were violated was no longer at issue before the Supreme Court; all parties agreed that they were. The only issues that remained concerned the appropriateness of damages and the structural order to remedy the systemic problem at Air Canada.
The Court recognized that “
the issue of damages sits at the intersection of Canada’s domestic commitment to official languages and its international commitment to an exclusive and uniform scheme of damages liability for international air carriers” but concluded that there was no need to determine which one should prevail over the other. The Supreme Court agreed with the Federal Court of Appeal and found that there was no conflict in this case; the two laws merely overlap in this instance. In finding that there was no conflict between the Montreal Convention and the OLA, the Supreme Court was able to reaffirm both the quasi-constitutional status of the OLA and the exclusivity of the Montreal Convention regime as the only recourse for damages with respect to international carriage by air. More precisely, the Court disagreed with the interpretation of article 29 of the Montreal Convention put forward by the Commissioner and found that the Convention precludes “
any action for damages” unless specified in the Convention itself. In accordance with similar decisions in the United States, the United Kingdom and Europe, the Supreme Court found that Canadian courts could not award monetary compensation for violations of the fundamental language rights found in the OLA committed on international flights. By reading the two laws harmoniously, the Court confirmed the quasi-constitutional status of section 77 of the OLA and the remedial authority of the Court under the OLA and avoided jeopardizing Canada’s duty to comply with its international undertakings.
The Court also explained that although structural orders “
play an important, yet limited, role in the enforcement of rights through the courts”, it was inappropriate in this case. These remedies are exceptional in nature because the ultimate sanction for failure to respect the order is a finding of contempt of court and the imposition of either a fine or imprisonment. These orders, therefore, must be crafted with precision and clarity. The Supreme Court was of the opinion that the language of the order made by the Federal Court was simply too imprecise to be enforceable. The benefit of such an order, essentially, was outweighed by the ongoing judicial supervision and litigation regarding compliance that would invariably arise.
The Court concluded by noting that the declaration that Air Canada had breached its language obligations under Part IV of the OLA, the letter of apology and costs of the application that were awarded to Mr. and Ms. Thibodeau constituted “
appropriate and just remedies in this this case.”
The decision of the Supreme Court of Canada was not unanimous and there was a dissent that disagreed with respect to the award of damages for breaches of language rights during international travel, but agreed with the majority that the structural order was not justified in the circumstances. The dissenting judges opined that the Montreal Convention did not exclude the type of damages sought by Mr. and Ms. Thibodeau. Essentially, they were of the view that “
Article 29 of the Montreal Convention should be interpreted in a way that is respectful of the protections given to fundamental rights, including language rights, in domestic legislation.”