Michel Thibodeau v. Lynda Thibodeau, 2014 SCC 67

SUPREME COURT OF CANADA Citation: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340 Date: 20141028 Docket: 35100 Between: Michel Thibodeau and Lynda Thibodeau Appellants and Air Canada Respondent And Between: Commissioner of Official Languages of Canada Appellant and Air Canada Respondent Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. Reasons for Judgment: (paras. 1 to 133) Dissenting Reasons: (paras. 134 to 178) Cromwell J. (McLachlin C.J. and LeBel, Rothstein and Karakatsanis JJ. concurring) Abella J. (Wagner J. concurring) thibodeau v. air canada, 2014 SCC 67, [2014] 3 S.C.R. 340 Michel Thibodeau and Lynda Thibodeau Appellants v.

Air Canada Respondent - and - Commissioner of Official Languages of Canada Appellant v. Air Canada Respondent Indexed as: Thibodeau v. Air Canada 2014 SCC 67 File No.: 35100. 2014: March 26; 2014: October 28.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. on appeal from the federal court of appeal Official languages — Breach of language rights during international carriage by air — Airline failing to provide services in French on international flights — Passengers applying to Federal Court for damages and a structural order under Official Languages Act — Whether award of damages barred by limitation of damages liability set out in the Convention for the Unification of Certain Rules for International Carriage by Air (“Montreal Convention”) — Whether structural order appropriate — Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), s. 77(4) — Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309,

Article 29. Legislation —

Interpretation — Conflicting legislation — Airline breaching passengers’ right to services in French under Official Languages Act by failing to provide services in French on international flights — Passengers applying to Federal Court for damages under Official Languages Act — Whether award of damages barred by limitation of damages liability set out in Convention for the Unification of Certain Rules for International Carriage by Air (“Montreal Convention”) — Whether Official Languages Act and Montreal Convention conflict or overlap — Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), s. 77(4) — Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309,

Article 29. In 2009, on three international flights operated by the airline and in an airport, the passengers did not receive services in the French language. They filed several complaints with the Office of the Commissioner of Official Languages against the airline, four of which were upheld. There is no dispute that the airline breached its obligations to supply services in French under s. 22 of the Official Languages Act (the “ OLA ”) on the occasions giving rise to those four complaints.

The passengers applied to the Federal Court under s. 77 of the OLA for damages and for structural orders in relation to the airline’s breaches of their right to services in French. The airline defended against the claims for damages by relying on the limitation on damages liability set out in the Convention for the Unification of Certain Rules for International Carriage by Air (the “ Montreal Convention ”), which restricts the types and the amount of claims for damages that may be made against international air carriers.

The Federal Court found that the passengers were entitled to both damages and a structural order, holding that although there was a conflict between the limitation on damages in the Montreal Convention and the power under the OLA to award damages, the latter prevailed. The Federal Court of Appeal set aside the award of damages for the three complaints about events that took place on board the flights as well as the structural order. It held that the Montreal Convention precluded the damages remedy and that a structural order was not appropriate.

Held (Abella and Wagner JJ. dissenting): The appeals should be dismissed. Per McLachlin C.J. and LeBel, Rothstein, Cromwell and Karakatsanis JJ.: 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 , depart from Canada’s international obligations under it and put Canada off-side a strong international consensus concerning its scope and effect.

The general remedial power under the OLA 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 claims before this Court fall squarely within the exclusion established by the Montreal Convention . The key provision at the core of the Montreal Convention ’s exclusive set of rules for liability is

Article 29 . This provision 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”.

Articles 17 to 19 of the Montreal Convention establish that the carrier is liable for damage sustained: in case of an accident causing the death or bodily injury of a passenger on board the aircraft or in the course of embarking or disembarking (Article 17); in case of destruction or loss of, or of damage to, baggage while in the charge of the carrier (Article 17); in the event of the destruction or loss of, or damage to, cargo during carriage (

Article 18 ); and for damage occasioned by delay (Article 19). 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 limitation of carrier liability. These purposes can only be achieved by the Montreal Convention if it 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 bases for liability in those areas. The Montreal Convention ’s text and purpose as well as a strong current of jurisprudence make it clear that the exclusivity of the liability scheme established under the Montreal Convention extends at least to excluding actions arising from

injuries suffered by passengers during flight or embarkation and debarkation when those actions do not otherwise fall within the scheme of permitted claims. The passengers’ argument that the Montreal Convention does not limit claims for damages sought in relation to public law claims or breaches of quasi-constitutional statutes has no support in the text or purpose of the Montreal Convention or in the international jurisprudence. The limitation in

Article 29 of the Montreal Convention applies to “any action” in the carriage of passengers, baggage or cargo, “for damages, however founded, whether under this Convention or in contract or in tort or otherwise”. There is no hint in this language that there is any intention to exempt any “action for damages” in the carriage of passengers, baggage or cargo depending on its legal foundation, such as when a plaintiff brings forward a statutory monetary claim of a public law nature based on the breach of quasi- constitutional rights. The passengers’ claims are an “action for damages” within the meaning of

Article 29, as they claim damages for injuries, namely moral prejudice, pain and suffering and loss of enjoyment of their vacation, suffered in the course of an international flight. Permitting an action in damages to compensate for moral prejudice, pain and suffering and loss of enjoyment of a passenger’s vacation that does not otherwise fulfill the conditions of

Article 17 of the Montreal Convention (because the action does not relate to death or bodily injury) would fly in the face of

Article 29. It would also undermine one of the main purposes of the Montreal Convention , which is to bring uniformity across jurisdictions to the types and upper limits of claims for damages that may be made against international carriers for damages sustained in the course of carriage of passengers, baggage and cargo. The application of the Montreal Convention focuses on the factual circumstances surrounding the monetary claim, not the legal foundation of it.

The passengers’ argument that the substantive scope of the Montreal Convention does not extend to barring claims for “standardized damages” and that their claims are of that nature must also be rejected. Even if this Court were to adopt the distinction between “individual damages” and “standardized damages” relied on in jurisprudence from the European Court of Justice, the damages sought by the passengers in this case were for damages on an individual basis, as they were geared to and depended upon the impact on the passengers of the particular breaches.

The passengers’ submission that, even if their claims fall within the substantive scope of the Montreal Convention , they fall outside its temporal scope for cases involving personal injuries since the assignments of non-bilingual flight attendants on the relevant flights were decisions made long before the embarkation process is not well founded. The passengers were clearly within the temporal limits of the Montreal Convention when they suffered the breach of their language rights.

Courts must focus their application of the exclusivity principle on the location or activity of the passenger when the accident or occurrence directly causing the particular injury giving rise to the claim occurred, not on some antecedent fault. When the OLA and the Montreal Convention are properly interpreted, there is no conflict between the general remedial powers under the OLA and the exclusion of damages under the Montreal Convention and, therefore, there is no need to consider which would prevail if there were.

Courts presume that legislation passed by Parliament does not contain contradictions or inconsistencies and only find that they exist when provisions are so inconsistent that they are incapable of standing together. Even when provisions overlap in the sense that they address aspects of the same subject, they are interpreted so as to avoid conflict wherever this is possible. The provisions in issue here overlap but do not conflict. They have markedly different purposes and touch on distinct subject matters.

The remedial provisions of the OLA are part of a larger scheme of obligations and mechanisms the object of which is to preserve and strengthen the vitality of Canada’s official languages in our federal institutions. The Montreal Convention , in contrast, is part of an internationally agreed upon uniform and exclusive scheme addressing the damages claims in the field of international carriage by air. The remedial provisions in the OLA cannot be understood to be an exhaustive code that requires damages to be available in all settings and without regard to all other relevant laws.

The OLA does not provide that damages should be granted in every case, but authorizes courts to grant “appropriate and just” remedies. The power to grant an “appropriate and just” remedy may easily be reconciled with the specific and limited exclusion of damages in the context of international air travel. A remedy is not “appropriate and just” if awarding it would constitute a breach of Canada’s international obligations under the Montreal Convention .

Accordingly, in fashioning an appropriate and just remedy under the OLA in a case of international carriage by air, the Federal Court must apply the limitation on damages set out in

Article 29 of the Montreal Convention . The passengers’ submission that the quasi-constitutional status of the OLA prevents a harmonious

interpretation of s. 77(4) of the OLA and of

Article 29 of the Montreal Convention must be rejected. Section 77(4) of the OLA , which confers a wide remedial authority, is certainly part of a quasi-constitutional statutory scheme designed to both reflect and actualize the equality of status of English and French as the official languages of Canada and the equal rights and privileges as to their use in the institutions of Parliament and government of Canada as declared in s. 16(1) of the Canadian Charter of Rights and Freedoms , and it should be interpreted generously to achieve its purpose. These factors, however, do not alter the correct approach to statutory

interpretation which requires that the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the statute and the intention of Parliament. The OLA , read in its full context, demonstrates that Parliament did not intend to prevent s. 77(4) from being read harmoniously with Canada’s international obligations given effect by another federal statute. The proposition that Parliament, through s. 77(4) , intended that courts should be able to grant damages even though doing so would be in violation of Canada’s international undertakings as incorporated into federal statute law runs afoul of the principle of

interpretation that Parliament is presumed not to intend to legislate in breach of Canada’s international law obligations. Section 77(4) should be understood as having been enacted into an existing legal framework which includes statutory limits, procedural requirements and a background of general legal principles — including Canada’s international undertakings incorporated into Canadian statute law — which guide the court in deciding what remedy is “appropriate and just”. The Federal Court of Appeal was correct to set aside the structural order.

Structural orders are treated with special care because of two potential and related problems: first, insufficient clarity, which in turn may result in the second, namely the need for ongoing judicial supervision. Orders must be sufficiently clear so that they give the parties bound by them fair guidance on what must be done to comply and to prevent a potentially endless round of further applications to determine whether the parties have complied.

Ongoing judicial supervision will be appropriate in some cases, but absent compelling circumstances, the courts generally should not make orders that have the almost inevitable effect of creating ongoing litigation about whether the order is being complied with. In this case, the order is too imprecise, risks ongoing litigation and court supervision in relation to whether it is being complied with, and is inappropriate particularly in light of the Commissioner’s statutory powers and expertise in relation to monitoring compliance with the OLA .

Per Abella and Wagner JJ. (dissenting): The Montreal Convention does not bar a damage award for breach of language rights during international carriage by air. The T’s seek damages for violations of a statute that reifies constitutionally protected rights. 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.

There is no evidence in the Parliamentary record or the legislative history of the Convention to suggest that Canada, as a state party, intended to extinguish domestic language rights protection by ratifying or implementing the Montreal Convention . Given the significance of the rights protected by the Official Languages Act and their constitutional and historic antecedents, the Montreal Convention ought to be interpreted in a way that respects Canada’s express commitment to these fundamental rights, rather than as reflecting an intention to subvert them.

This Court has often said that domestic law should be generously interpreted in alignment with international law and its human rights values. It has never said that international law should be interpreted in a way that diminishes human rights protected by domestic law. The process of treaty

interpretation is a process of discernment. The literal meaning of the words is rarely reliably able to yield a clear and unequivocal answer. The intention of state parties must therefore be discerned by using a good faith approach not only to the words at issue, but also to the context, history, object and purpose of the treaty as a whole. In this case, this exercise leads to the conclusion that

Article 29 of the Montreal Convention does not exclusively govern the universe of damages for which carriers are liable during international carriage by air. The first words of

Article 29 are words that restrict its scope by declaring that any action for damages “[i]n the carriage of passengers, baggage and cargo” must be brought subject to the conditions set out in the Montreal Convention . The phrase that immediately follows — “however founded, whether under this Convention or in contract or in tort or otherwise” — is a clause dependant for its meaning on the preceding opening words; thus, “action” refers only to an action for damages “[i]n the carriage of passengers, baggage and cargo”.

It is, therefore, only an action for damages incurred “[i]n the carriage of passengers, baggage and cargo” that must be brought “subject to the conditions and such limits of liability as are set out” in the Montreal Convention . Other provisions of the Montreal Convention , and, in particular, of

Chapter III in which

Article 29 is found, provide interpretive assistance to assess the meaning of an action for damages “[i]n the carriage of passengers, baggage and cargo”.

Chapter III sets out the limited liability of carriers in the carriage of passengers, baggage and cargo. Articles 17, 18 and 19 refer to death or bodily injury of a passenger, destruction or loss of, or damage to, baggage, destruction or loss of, or damage to, cargo, and delay in the carriage of persons, baggage or cargo. Together with

Article 29, these provisions confirm that the Montreal Convention exclusively governs only actions for damages in respect of these subjects. The predecessor Warsaw Convention came into being in 1929 to assist the fledgling airline industry take flight. At that time, aviation technology was in its initial stages. Accidents were common, and many pilots and passengers were injured or died as a result. The relative frequency of accidents exposed carriers to unpredictable and significant losses. This made it difficult to secure investment capital or insurance protection.

Airlines responded by requiring passengers to sign waivers relieving carriers of any and all liability in the event of an injury. When accidents happened, those passengers were left with no remedy for their injuries or losses. As safety in the industry improved, governments turned their attention from protecting the financial viability of airlines to introducing a more passenger-friendly legal regime.

The focus tilted towards increasing the exceptionally low limits on carrier liability established in the Warsaw Convention and states subsequently signed on to different international efforts to expand carrier liability. Notwithstanding the increasing recognition that compensation for passengers was too low, a single international instrument increasing ceilings on carrier liability proved elusive. Out of concern that this fractured response could lead to the demise of a unified system of international air law, the industry took action.

The Montreal Agreement of 1966, a private arrangement between airlines, increased carrier liability under the Warsaw Convention for personal injury. Having been “upstaged” by industry initiatives to address the low ceilings on carrier liability, states began to work towards updating the Warsaw Convention . The Montreal Convention came into being in 1999, adopting a two-tier liability scheme for passenger injury or death. The Montreal Convention sought to replace the patchwork system that had attempted to expand the limits on liability set by the Warsaw Convention in 1929.

The drafters of the Montreal Convention continued to maintain a uniform liability scheme, as had the Warsaw Convention , but while the primary goal of the Warsaw Convention had been to limit the liability of carriers in order to foster the growth of the nascent commercial aviation industry, the state parties to the Montreal Convention were more focused on the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution. Interpreting

Article 29 of the Montreal Convention in a way that narrows protection for consumers and expands it for carriers, is therefore both counter-intuitive and historically anomalous. At no time was there ever any suggestion that the new Convention was designed to reduce the ability of passengers to sue carriers. The absence of any reference in the Parliamentary record to the changes in language between the Warsaw Convention and the Montreal Convention is also revealing. Dramatic changes in law tend to attract dramatic reactions. This purported change attracted none.

The most logical explanation for the silence, therefore, is that there was no change in law. In fact, it is hard to imagine such a drastic domestic intrusion without either express language or Parliamentary disclosure. The silence about such consequences suggests that no such consequence was either contemplated or intended. The meaning of

Article 29, considered in context and in light of the object and purpose of the Montreal Convention , therefore, points to a limited scope of exclusivity, and should be interpreted as directing that the Montreal Convention governs only those actions brought for damages incurred “[i]n the carriage of passengers, baggage and cargo”, namely, actions covered by Articles 17, 18 and 19. The T’s action for damages does not fall within the actions covered by Articles 17 , 18 and 19 of the Montreal Convention .

The language of Article 17(1) makes it clear that the provision does not apply to all events that take place on board an aircraft or in the course of the operations of embarking or disembarking. Rather, Article 17(1) imposes the requirements that: (1) there must have been an

accident, (2) which caused, (3) death or bodily injury, (4) while the passenger was on board the aircraft or was in the course ofembarking or disembarking. In this case, there is no complaint of an accident. That is dispositive since Article 17(1) talks of “death orbodily injury” caused by an accident. The T’s have not suffered any bodily injury. The fact that the breaches of their language rightsoccurred on board the aircraft is irrelevant since those circumstances are only pertinent if there was an accident.

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Weber, Ludwig, and Arie Jakob. “The Modernization of the Warsaw System: The Montreal Convention of 1999” (1999), 24 Ann. Air &Sp. L. 333. Wegter, Jorn J. “The ECJ Decision of 10 January 2006 on the Validity of Regulation 261/2004: Ignoring the Exclusivity of theMontreal Convention” (2006), 31 Air & Space L. 133. APPEALS from a judgment of the Federal Court of Appeal (Pelletier, Gauthier and Trudel JJ.A.), 2012 FCA 246, [2013] 2F.C.R. 155, 435 N.R. 131, 355 D.L.R. (4th) 62, [2012] F.C.J.

No. 1201 (QL), 2012 CarswellNat 3578, setting aside in part a decision ofBédard J., 2011 FC 876, [2013] 2 F.C.R. 83, 394 F.T.R. 160, 239 C.R.R. (2d) 301, [2011] F.C.J. No. 1030 (QL), 2011 CarswellNat6095. Appeals dismissed, Abella and Wagner JJ. dissenting. Érik Labelle Eastaugh, Ronald F. Caza and Alyssa Tomkins, for the appellants Michel and Lynda Thibodeau. Pascale Giguère, Kevin Shaar and Mathew Croitoru, for the appellant the Commissioner of Official Languages of Canada. Louise-Hélène Sénécal, Pierre Bienvenu and Andres Garin, for the respondent.

The judgment of McLachlin C.J. and LeBel, Rothstein, Cromwell and Karakatsanis JJ. was delivered by Cromwell J. — I. Introduction [1] Air Canada failed to provide services in French on some international flights as it was obliged to do under theOfficial Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the “OLA”). Two passengers, the appellants Michel and Lynda Thibodeau,applied to the Federal Court for damages and for orders, referred to as “structural” or “institutional” orders, requiring Air Canada to takesteps in order to ensure future compliance with the OLA.

The airline defended against the claims for damages by relying on thelimitation on damages liability set out in the Convention for the Unification of Certain Rules for International Carriage by Air, 2242U.N.T.S. 309 (the “Montreal Convention”), which is part of Canadian federal law by virtue of the Carriage by Air Act, R.S.C. 1985, c.C-26, a federal statute. [2] The Federal Court rejected Air Canada’s defence, awarded damages and granted a structural order (2011 FC 876,[2013] 2 F.C.R. 83).

However, the Federal Court of Appeal set that ruling aside in part, holding that the Montreal Convention precludedthe damages remedy for the events that took place on board Air Canada flights and that a structural order was not appropriate (2012 FCA246, [2013] 2 F.C.R. 155). The main issue on the further appeal to this Court is whether the Federal Court of Appeal erred in theseconclusions. [3] The issue of damages sits at the intersection of Canada’s domestic commitment to official languages and itsinternational commitment to an exclusive and uniform scheme of damages liability for international air carriers.

The question thusimplicates two important values. [4] On one hand, we have Canada’s duty to comply with its international undertaking, by its ratification of theMontreal Convention and its adoption of the Montreal Convention into domestic law, to establish and give effect to limitations onliability for international air carriers. Air Canada maintains that upholding a damages remedy against the airline would be inconsistentwith this important international undertaking.

On the other hand, we have Canada’s foundational commitment to the equality of theFrench and English languages, a commitment reflected, among other places, in s. 16 of the Canadian Charter of Rights and Freedomsand in the OLA. These language rights are “basic to the continued viability of [this] nation”: R. v. Mercure, (SCC),[1988] 1 S.C.R. 234, at p. 269, per La Forest J.

The appellants say that a damages remedy must be available for breach of language rightsin order to fulfill the purposes of the OLA. [5] This appeal requires us to resolve this tension by interpreting the OLA and the Montreal Convention in accordancewith their text and purpose.

As I see it, when they are properly interpreted, there is no conflict between the general remedial powersunder the OLA and the exclusion of damages under the Montreal Convention and there is no need to consider which would prevail ifthere were. [6] The Montreal Convention’s uniform and exclusive scheme of damages liability for international air carriers doesnot permit an award of damages for breach of language rights during international carriage by air.

To hold otherwise would do violenceto the text and purpose of the Montreal Convention, depart from Canada’s international obligations under it and put Canada off-side astrong international consensus concerning its scope and effect.

The general remedial power under the OLA to award appropriate and justremedies cannot — and should not — be read as authorizing Canadian courts to depart from Canada’s international obligations under theMontreal Convention. [7] I also conclude that the Federal Court of Appeal was correct to set aside the structural order as it was impermissiblyvague and unclear. [8] I would therefore dismiss the appeals. II. Facts and Proceedings A.

The Official Languages Act [9] The OLA is a federal statute whose purposes include ensuring respect for English and French as the officiallanguages of Canada and the equality of status and equal rights and privileges as to their use in all federal institutions: s. 2(a). The OLAalso seeks to support the development of English and French linguistic minority communities and, as well, sets out the powers, duties

and functions of federal institutions with respect to official languages: s. 2(

b) and (c). [10] Parts I to VI of the OLA set out various language rights in a number of settings: the proceedings of Parliament,legislative and other instruments, the administration of justice, communications with the public and the workplace. Parts VII and VIII ofthe OLA set out duties and responsibilities with respect to enhancing the vitality of English and French linguistic minorities and fosteringthe full recognition and use of both English and French in Canadian society.

Part IX establishes the Office of the Commissioner ofOfficial Languages and sets out the Commissioner’s duties and powers. These include the duty to undertake investigations, to makerecommendations and to report. [11]

Part X provides for court remedies and includes provision for a person who has made a complaint to theCommissioner in relation to certain parts of the OLA to apply to the Federal Court for a remedy: s. 77(1).

The court is empowered, if itfinds that a federal institution has failed to comply with the OLA, to award “such remedy as it considers appropriate and just in thecircumstances”: s. 77(4). [12] As the Court has observed on a number of occasions, the OLA has a special status: “. . . it belongs to that privilegedcategory of quasi-constitutional legislation which reflects ‘certain basic goals of our society’ and must be so interpreted ‘as to advancethe broad policy considerations underlying it’” (Lavigne v.

Canada (Office of the Commissioner of Official Languages), 2002 SCC 53,[2002] 2 S.C.R. 773, at para. 23, quoting Canada (Attorney General) v. Viola, (FCA), [1991] 1 F.C. 373 (C.A.), atp. 386). [13] Air Canada and its affiliate Jazz are subject to the OLA: see Air Canada Public Participation Act, R.S.C. 1985, c. 35(4th Supp.), s. 10. (For convenience, I will refer to either or both of them as “Air Canada” in these reasons.) The OLA requires AirCanada to supply services in French or English where there is “significant demand” for them: see s. 22(b). B.

The Montreal Convention [14] The Montreal Convention, which is part of Canadian federal law by virtue of the Carriage by Air Act, restricts thetypes and the amount of claims for damages that may be made against international air carriers. It permits claims for death or bodilyinjury, destruction, damage or loss of baggage and cargo and for delay: Articles 17 to 19. It bars all other actions for damages, howeverfounded, in the carriage of passengers, baggage and cargo:

Article 29. The Thibodeaus’ claims for damages under the OLA are clearly notwithin the types of permitted claims for death or bodily injury, destruction, damage or loss of baggage and cargo or for delay. TheThibodeaus submit, however, that their claims are not barred by the Montreal Convention. C. The Complaints [15] On three international flights on Air Canada and in an airport, over the course of roughly four months in 2009, Mr.and Ms. Thibodeau did not receive services in the French language.

On some flights, there was no flight attendant able to provideservices in French and in some cases passenger announcements on board and in the terminal were made only in English. [16] On January 23, 2009, while on board a flight from Toronto to Atlanta, Georgia, Mr. and Ms. Thibodeau did notreceive services in French because there was no bilingual flight attendant on the aircraft. A few days later, coming back from Atlanta,there was no French announcement made by the pilot or translation of it.

On May 12, 2009, the Thibodeaus again did not receive servicesin French, this time on a flight from Charlotte, North Carolina, to Toronto. Upon arrival in Toronto, an announcement concerningbaggage collection was made only in English. [17] There is no longer any dispute that Air Canada breached its obligations under s. 22 of the OLA on these occasions. [18] Mr. and Ms. Thibodeau filed eight complaints with the Office of the Commissioner of Official Languages: fourcomplaints related to the breaches described above and four related to other incidents during those two trips.

These latter complaints werehowever rejected by the Commissioner (and later by the application judge) and only the four complaints that were upheld by theCommissioner were subsequently upheld by the application judge: application judge’s reasons, at para. 30. [19] In response to the Commissioner’s investigation of the Thibodeaus’ complaints, Air Canada put in place remedialmeasures to improve its capacity to offer bilingual services.

These measures led the Commissioner to close its files pertaining to the fourcomplaints that he had found to be established. [20] The Commissioner also undertook an audit of the bilingual services offered by Air Canada to its passengers andreleased its report in September 2011, after the Federal Court rendered its decision in the present case (Audit of Service Delivery inEnglish and French to Air Canada Passengers: Final Report (2011)). The Commissioner made 12 recommendations to Air Canada inthis audit, recommendations to which the latter responded by suggesting measures and deadlines to implement said measures.

TheCommissioner declared himself satisfied with Air Canada’s proposed solutions for 11 of the recommendations, and partly satisfied withthe answer provided for the remaining recommendation, which I should say is not relevant for the outcome of this appeal. (I note that thereliance of the Federal Court of Appeal on this subsequently acquired report was objected to by the Commissioner. I refer to this audithere simply to complete the factual background of this case and not in relation to the specific issues I will later decide in these reasons.) D.

Proceedings in the Federal Courts [21] As outlined earlier, under s. 77 of the OLA, a person who has complained to the Commissioner under variousprovisions, including in relation to failure to provide services to the public in both official languages, may apply to the Federal Court ofCanada for a remedy. If the court concludes that a federal institution has failed to comply with the OLA, the court may grant such remedyas it considers appropriate and just in the circumstances. [22] The Thibodeaus applied to the Federal Court for remedies in relation to Air Canada’s breaches of their right toservices in French.

They requested that the court make “institutional orders against Air Canada and . . . order it to pay punitive and

exemplary damages”, as well as damages for the violation of their language rights: application judge’s reasons, at para. 43. [ 23 ] Air Canada’s position was that damages for breach of the OLA are not permitted under the Montreal Convention and that the Thibodeaus’ claims for damages were therefore precluded because they arose out of injury suffered in the course of international flights governed by the Montreal Convention .

(1) Federal Court, Bédard J. [ 24 ] The Federal Court found that the Thibodeaus were entitled to both damages and a structural order. The judge concluded that there was a conflict between the limitation on damages in the Montreal Convention and the power under the OLA to award damages. As she put it, “in interpreting the Montréal Convention as allowing compensation on the basis of a cause of action which is not contemplated by the Convention , I would depart from the Canadian and international case law”: para. 77.

She concluded, however, that the power to award damages under the OLA prevailed over the Montreal Convention in the face of this conflict: paras. 81- 83.

She therefore ordered Air Canada to pay $6,000 in damages to each of the Thibodeaus ($1,500 per incident) in order to compensate them for the harm they suffered (moral prejudice, pain and suffering and loss of enjoyment of their vacation), to recognize the importance of the rights at issue and to deter future breaches: paras. 88-90. [ 25 ] Bédard J. then analyzed the evidence supporting the Thibodeaus’ claim for a structural order and concluded that there was a “systemic problem at Air Canada”, in the sense that violations of its linguistic obligations were not “isolated problems that [were] out of [its] control”: para. 153.

She therefore ordered the airline to put in place within the next six months a monitoring process that would “quickly identify, document and quantify potential violations of its language duties”: application judge’s reasons, at p. 153.

(2) Federal Court of Appeal, Trudel J.A. (Pelletier and Gauthier JJ.A. Concurring) [ 26 ] Air Canada appealed these conclusions and, on September 25, 2012, the Federal Court of Appeal allowed the appeal and set aside the award of damages for the three complaints about events that took place on board Air Canada flights (the claim for damages related to the announcement concerning baggage collection at the Toronto Airport was not appealed: Air Canada factum, para. 29) and the structural order.

The court agreed with the judge at first instance that the Montreal Convention would bar the Thibodeaus’ claims for damages unless the broad remedial power under the OLA prevails over that bar: paras. 20-22.

The court, however, found that there was no conflict between the two regimes: in deciding whether a remedy is “appropriate and just” under the OLA , the court must take into account the fact that damages are not permitted in the circumstances to which the Montreal Convention applies: para. 43. [ 27 ] With respect to the structural order, the Federal Court of Appeal concluded it was not appropriate in the circumstances of this case because the evidence was insufficient and because the order was too vague to be properly enforced: paras. 74- 76. [ 28 ] This Court granted Mr. and Ms.

Thibodeau leave to appeal and, by the same judgment, gave appellant status to the Commissioner of Official Languages of Canada. I will refer to them collectively as the appellants. III. Analysis A. Does the Montreal Convention Purport to Exclude Monetary Damages Under the Official Languages Act ?

(1) The Appellants’ Submissions [ 29 ] The appellants make three principal submissions in support of their position that the Montreal Convention does not purport to exclude a damages remedy under the OLA : 1. The Montreal Convention applies only to private law claims, not statutory claims in relation to fundamental rights such as language rights. 2. The Montreal Convention only limits “individual” damage awards, not remedies for “standardized” damages. 3.

The appellants’ claims do not fall within the temporal scope of the Montreal Convention ’s limitation of claims. [ 30 ] Both the Federal Court and the Federal Court of Appeal were of the view that the Montreal Convention purports to exclude a claim for damages under the OLA and I agree with them. In my view, the appellants’ submissions to the contrary are based on a misconception of the purpose and structure of the Montreal Convention and a misreading of its text.

Before turning in more detail to each of the appellants’ main submissions, I will set out briefly some important interpretative considerations in relation to the Montreal Convention .

(2) Interpreting the Montreal Convention (

a) Overview [ 31 ] The Montreal Convention was adopted in 1999 in Montréal and applies to all international carriage by aircraft of persons, baggage or cargo. It was the successor to the Convention for the Unification of Certain Rules Relating to International Carriage by Air , 137 L.N.T.S. 11 (the “ Warsaw Convention ”) and its purpose was “to modernize and consolidate the Warsaw Convention and related instruments”:

preamble of the Montreal Convention . To understand the purposes of the Montreal Convention , we therefore must go back to its predecessor, the Warsaw Convention , signed at Warsaw on October 12, 1929, as set out at Sch. I of the Carriage by Air Act (as amended at The Hague in 1955, as set out at Sch. III). The purposes of the Warsaw Convention and of the Montreal Convention were the same and decisions and commentary respecting the Warsaw Convention are therefore helpful in understanding those purposes: Stott v. Thomas Cook Tour Operators Ltd. , [2014] UKSC 15, [2014] 2 W.L.R. 521, at paras. 24-25 ; P. S.

Dempsey, Aviation Liability Law (2nd ed. 2013), at p. 304; P. S. Dempsey and M. Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005), at

p. 7. [32] There were a number of attempts to revise the Warsaw Convention, leading ultimately to the Montreal Conventionwith which we are directly concerned here: see, e.g., Montreal Protocol No. 4 to amend the Convention for the Unification of CertainRules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Protocol done at The Hagueon 28 September 1955, 2145 U.N.T.S. 31, as set out at Sch. IV of the Carriage by Air Act. For a comprehensive overview of thesemodifications which led to the Montreal Convention, see J. D.

McClean et al., eds., Shawcross and Beaumont: Air Law (loose-leaf), atpp. VII-103 to VII-165. The Montreal Convention resulted from the work of delegates of approximately 120 states meeting in Montréalin 1999: L. Weber and A. Jakob, “The Modernization of the Warsaw System: The Montreal Convention of 1999” (1999), 24 Ann. Air &Sp. L. 333, at pp. 334-35; Dempsey, at p. 336; Dempsey and Milde, at pp. 36-41. [33] The Montreal Convention was ratified by Canada in 2002 and it came into force in 2003. It is part of Canadianfederal law by virtue of s. 2 of the Carriage by Air Act, and its text is set out at Sch.

VI of that statute. The same basic structure andlanguage used in the various versions of the Warsaw Convention can be found in the Montreal Convention and the same quid pro quobetween limiting air carrier’s liability and facilitating consumers’ claims was maintained: Dempsey, at pp. 310 and 338-40; Shawcrossand Beaumont, at p. VII-251. [34] The question raised in this appeal is whether

Article 29 of the Montreal Convention, which limits the actions indamages that can be brought for injuries in the course of international air carriage, excludes the Thibodeaus’ claims for damages. I turntherefore to the

interpretation of this article. [35] I begin this exercise with a fundamental principle of

interpretation, set out in

Article 31 of the Vienna Convention onthe Law of Treaties, Can. T.S. 1980 No. 37: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object and purpose.” I will therefore first turn to the text of Article29 of the Montreal Convention and then analyze its place within the Montreal Convention in light of the latter’s purpose and object:Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, at para. 56. (

b) Text [36] The key provision at the core of the Montreal Convention’s purpose of establishing a uniform and exclusive set ofrules for liability is

Article 29, which is the successor of

Article 24 of the Warsaw Convention.

Article 29 reads:

Article 29 — Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contractor in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention withoutprejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

In any suchaction, punitive, exemplary or any other non-compensatory damages shall not be recoverable. [37] The Montreal Convention makes clear that it provides the exclusive recourse against airlines for various types ofclaims arising in the course of international carriage by air. It provides that all “action[s] for damages” in the carriage of passengers,baggage and cargo are subject to the conditions and limitations of liability set out in its provisions. The provision could hardly beexpressed more broadly; it applies to “any action for damages, however founded”.

This breadth is equally reflected in the French text:“. . . toute action en dommages-intérêts, à quelque

titre que ce soit . . . .” [38] This exclusivity principle is expressed even more clearly in the Montreal Convention than it was in the WarsawConvention.

Article 24 of the Warsaw Convention introduces its exclusion of other claims by referring to “the cases covered by” Articles17 to

Article 29 of the Montreal Convention, in contrast, introduces its exclusion of other claims by using the terms “[i]n the carriageof passengers, baggage and cargo”. By using this broader language, it articulates even more clearly the state signatories’ intention toexclude any actions not specifically addressed in Articles 17 to 19. The comments made by the chairman of the International Conferenceon Air Law, held in Montréal in May 1999, on this point are enlightening: The provisions contained in

Article [29] (Basis of Claims) made it clear that an action which was brought for damages, however founded,whether under the new Convention or in contract or tort or otherwise, could only be brought subject to the conditions and such limits ofliability as were set out in the Convention. There was indeed jurisprudence which suggested that it was exclusive.

It was not possible toget around the provisions of the Convention regarding the burden of proof, etc., by bringing an action in tort or by attempting to bring anaction outside the Convention . . . . [Emphasis added.] (International Civil Aviation Organization, International Conference on Air Law, vol. I, Minutes, Doc. 9775-DC/2 (2001), at p. 137) [39] The Montreal Convention sets out in

Chapter III the types of liability of carriers that are permitted and theapplicable limits on compensation. It also clarifies the set of events that

Article 29 purports to cover. Articles 17 to 19 establish that thecarrier is liable for damage sustained: in case of an accident causing the death or bodily injury of a passenger on board the aircraft or inthe course of embarking or disembarking (Article 17); in case of destruction or loss of, or of damage to, baggage while in the charge ofthe carrier (Article 17); in the event of the destruction or loss of, or damage to, cargo during carriage (Article 18); and for damageoccasioned by delay (Article 19).

The full text of the relevant provisions of the Montreal Convention is set out in the Appendix. [40] The monetary limits of the carrier’s liability (which are not directly relevant to this appeal) are set out in Articles 21and 22. These limits of liability are linked specifically and exclusively to the claims addressed in Articles 17 to 19 and, by virtue ofArticle 26, any contractual provision tending to relieve a carrier of liability or fix a lower limit of liability than that established in the

Montreal Convention is null and void.

Chapter VI of the Montreal Convention underlines its exclusive force by providing that any provision in a contract of carriage or special contract that purports to infringe the rules laid down by the Montreal Convention is null and void:

Article 49 . As discussed earlier,

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”. (

c) Purpose and Object of the Montreal Convention [ 41 ] The Warsaw Convention (and therefore its successor the Montreal Convention ) had three main purposes: to create uniform rules governing claims arising from international air transportation; to protect the international air carriage industry by limiting carrier liability; and to balance that protective goal with the interests of passengers and others seeking recovery.

These purposes responded to concerns that many legal regimes might apply to international carriage by air with the result that there could be no uniformity or predictability with respect to either carrier liability or the rights of passengers and others using the service. Both passengers and carriers were potentially harmed by this lack of uniformity.

There were also concerns that the fledging international airline business needed protection against potentially ruinous multi-state litigation and virtually unlimited liability. [ 42 ] As succinctly summed up by one text, the Warsaw Convention aimed “to eliminate many of the conflicts problems which might arise in international air travel, to create a system of internationally recognized documentation, to prescribe a limitation period for claims, to resolve questions of jurisdiction and, perhaps most importantly, to impose very strict limits on carriers’ liability”: Fountain Court Chambers, Carriage by Air (2001), at p. 3.

From the point of view of passengers and shippers, this limitation was balanced against a reversal of the burden of proof in their favour such that, on proof of damage, fault on the part of the carrier would be presumed: ibid . See also Dempsey, at pp. 309-10; Shawcross and Beaumont , at pp. VII-105 to VII-105A; A. Field, “International Air Carriage, The Montreal Convention and the Injuries for Which There is No Compensation” (2006), 12 Canta. L.R. 237, at p. 239; L.

Chassot, Les sources de la responsabilité du transporteur aérien international: entre conflit et complémentarité (2012), at pp. 45-46. [ 43 ] It will be helpful to explain in a bit more detail how the Warsaw Convention addressed each of its three main purposes. [ 44 ] To further the goal of uniformity, the Warsaw Convention provided for three areas of air carrier liability: personal injuries in

Article 17; loss, destruction and damage to baggage or cargo in

Article 18; and damage occasioned by delay in

Article 19. It also set out the conditions exempting air carriers from liability (Article 20), the monetary limits of liability (

Article 22 ) and, to keep the scheme in balance, the circumstances in which air carriers may not limit liability (Articles 23 and 25). The intention was to exempt carriers from the differing liability regimes under the law of the various states: see, e.g., El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng , 525 U.S. 155 (1999), at pp. 169-71, per Ginsburg J. [ 45 ] As for the second purpose — limiting liability — the Warsaw Convention restricted both the nature of admissible claims and the amount of recovery.

In Articles 22 and 24, passengers were limited in the amount of damages they could recover and restricted in the claims they could pursue. The Warsaw Convention ’s regime rests on an exclusivity principle, found at

Article 24, which provides that “[i]n the cases covered” by Articles 17 to 19, “any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention”. It is useful to reproduce here

Article 24 in its entirety, since several cases I will discuss later turn on this provision: Article 24 (1) In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention .

(2) In the cases covered by

Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are persons who have the right to bring suit and what are their respective rights. [ 46 ] The third purpose of the Warsaw Convention was to balance the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability: Tseng , at p. 170.

While there was concern that damage suits could put the nascent international airline industry at risk, there was also concern that the airlines would take undue advantage of their ability to limit their liability by contractual means: ibid . The Warsaw Convention was thus seen as “a compromise between the interests of air carriers and their customers worldwide”: Tseng , at p.

Article 17 of the Warsaw Convention denies carriers the contractual prerogative to exclude or limit their liability for personal injury, whereas Articles 22 and 24 limit the amount of damages that passengers can recover and restrict their claims.

As previously mentioned, the Warsaw Convention also gave passengers and shippers the benefit of a reversed burden of proof. [ 47 ] As we have seen, two of the main purposes of the Warsaw Convention , and hence of the Montreal Convention , are to achieve a uniform set of rules governing damages liability of international air carriers and to provide limitation of carrier liability. These purposes can only be achieved by the Montreal Convention if it provides the exclusive set of rules in relation to the matters that it covers.

The Montreal Convention of course does not deal with all aspects of international carriage by air: it is not comprehensive. But within the scope of the matters which it does address, it is exclusive in that it bars resort to other bases for liability in those areas: M. Clarke, Contracts of Carriage by Air (2nd ed. 2010), at pp. 8 and 160-62; G. N. Tompkins, Jr., “The Continuing Development of Montreal Convention 1999 Jurisprudence” (2010), 35 Air & Space L. 433, at pp. 433-36. [ 48 ] The scope of the exclusivity principle in the Montreal Convention lies at the heart of this appeal.

While we do not have to resolve all of the issues that may arise with respect to how this exclusivity principle operates, the Montreal Convention ’s text and purpose as well as a strong current of jurisprudence make it clear that the exclusivity of the liability scheme established under the

Montreal Convention extends at least to excluding actions arising from injuries suffered by passengers during flight or embarkation anddebarkation when those actions do not otherwise fall within the scheme of permitted claims. [49] I dwell on this point because the appellants’ submissions, while not doing so directly, in effect take issue with thisexclusivity principle. Instead of asking whether their claims fall within those permitted by the Montreal Convention, the appellants seekto circumvent the exclusivity of the Montreal Convention by arguing that their claims are not specifically excluded.

The appellants havenever suggested that the Thibodeaus’ claims under the OLA could also be maintained under Articles 17 to 19 of the MontrealConvention. This, respectfully, is the fatal flaw in their argument. As we shall see in further detail below, the appellants try to escape theapplication of the Montreal Convention by claiming that the Thibodeaus’ proceedings in the Federal Court do not constitute an “actionfor damages” covered by the substantive scope of the Montreal Convention and that therefore its bar on claims does not apply to theiraction.

The appellants also argue that the Thibodeaus’ claims do not fall within the temporal scope of the Montreal Convention. Thesesubmissions fail because they are inconsistent with the exclusivity principle that underlies the Montreal Convention and because they arenot consistent with its clear text. A review of the international jurisprudence supports this view. (

d) The International Jurisprudence [50] The highest courts of state parties to the Montreal Convention have affirmed the exclusivity principle: S. Radošević,“CJEU’s Decision in Nelson and Others in Light of the Exclusivity of the Montreal Convention” (2013), 38 Air & Space L. 95, at p. 99.In light of the Montreal Convention’s objective of achieving international uniformity, we should pay close attention to the internationaljurisprudence and be especially reluctant to depart from any strong international consensus that has developed in relation to itsinterpretation: see Tseng, at p. 175; Morris v.

KLM Royal Dutch Airlines, [2002] UKHL 7, [2002] 2 A.C. 628, at paras. 5 and 7; see alsoPlourde v. Service aérien FBO inc. (Skyservice), 2007 QCCA 739 , at paras. 53-55, leave to appeal refused, [2007] 3 S.C.R.xiii; Sakka (Litigation Guardian of) v. Air France, 2011 ONSC 1995, 18 C.P.C. (7th) 150, at para. 28; and Chassot, at p. 34. [51] I begin my review with cases decided under the Warsaw Convention, which, as I noted earlier, is similar in purpose,structure and text to its successor the Montreal Convention which is in issue on this appeal.

In cases under the Warsaw Convention, thehighest courts of the United Kingdom, the United States, and France have endorsed the exclusivity principle. The exclusivity principle,affirmed under this Warsaw Convention jurisprudence, is, if anything, more strongly apparent in the text of the Montreal Convention. [52] In Sidhu v. British Airways Plc., [1997] A.C. 430 (H.L.), the plaintiffs were taken hostage during a layover inKuwait by the Iraqi forces, at the commencement of what became known as the Gulf War. Ms. Sidhu sued British Airways for personalinjury at common law and Ms.

Abnett, for delay and for breach of contract at common law. While the House of Lords did not express anopinion on this issue, it was common ground that

Article 17 of the Warsaw Convention, as fully implemented by the Carriage by Air Act,1961, 9 & 10 Eliz. 2, c. 27, in the United Kingdom, did not apply to the plaintiffs’ claim. Indeed, the parties agreed that

Article 17 couldnot apply, given that no “accident” occurred while on board the aircraft or while disembarking and that psychological damage could notfall under the notion of “bodily injury”: pp. 440-41. The stark issue was therefore “whether a passenger who has sustained damage in thecourse of international carriage by air due to the fault of the carrier, but who has no claim against the carrier under

article 17 of the[Warsaw] Convention, is left without a remedy”: p. 441. In deciding this question, the House of Lords analyzed the purpose of theWarsaw Convention, as well as its text and context, and concluded, at pp. 453-54: I believe that the answer to the question raised in the present case is to be found in the objects and structure of the Convention.

Thelanguage used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform internationalcode, which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law.The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas withwhich it deals — and the liability of the carrier is one of them — the code is intended to be uniform and to be exclusive also of any resortto the rules of domestic law. . . . . . .

It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to definethose situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims toestablish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity. . . .

The conclusion must be therefore that any remedy is excluded by the Convention, as the set of uniform rules does not provide for it.The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine theConvention.

It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operationof the whole scheme. [53] This understanding of the exclusivity principle was reiterated by the House of Lords in In re Deep Vein Thrombosisand Air Travel Group Litigation, [2005] UKHL 72, [2006] 1 A.C. 495, at para. 3: It is to the passengerʼs disadvantage, however, that even clear causative negligence on the part of the carrier will not entitle the passengerto a remedy if the

article 17 conditions cannot be satisfied. It has been authoritatively established that if a remedy for the injury is notavailable under the Convention, it is not available at all: see Sidhu v British Airways plc [1997] AC 430 and El Al Israel Airlines Ltd vTsui Yuan Tseng (1999) 525 US 155. [Emphasis added.] [54] In Tseng, the Supreme Court of the United States agreed with the House of Lords’ affirmation of the exclusivityprinciple in Sidhu and adopted the

interpretation of the Warsaw Convention which was supported by the United States government. Theplaintiff was subjected to an intrusive security search at John F. Kennedy International Airport in New York before she boarded an El AlIsrael Airlines flight to Tel Aviv. She sought damages for psychic or psychosomatic injuries, but agreed that she did not suffer any“bodily injury”. The airline and the U.S. government submitted that the words “[i]n the cases covered by

Article 17”, found at

Article 24of the Warsaw Convention, “refer[red] generically to all personal injury cases stemming from occurrences on board an aircraft or in

embarking or disembarking”: p. 168. The United States Supreme Court further agreed with the proposition that “[s]o read,

Article 24 [of the Warsaw Convention ] would preclude a passenger from asserting any air transit personal injury claims under local law, including claims that failed to satisfy

Article 17’s liability conditions”: ibid. [ 55 ] The French Cour de cassation adopted a similar approach in Civ. 1 re , June 14, 2007, Bull. civ. 6, No. 230. Ms. Gillet suffered a pulmonary embolism more than two weeks after an international flight with Air Canada and sued the latter for damages, arguing that it failed to inform her of the risks of aerial transportation, as was its contractual duty under the French Code de la consommation . She was however denied monetary relief by virtue of the application of the Warsaw Convention , which was integrated in French domestic law by art.

L. 322-3 of the Code de l’aviation civile . She appealed to the Cour de cassation, première chambre civile, submitting among other arguments that the Cour d’appel de Paris erred in not applying the provisions of the Code de la consommation , which are of public order at domestic law. The Cour de cassation rejected this contention, holding that a personal injury claim that does not respect the conditions set out at

Article 17 of the Warsaw Convention was precluded by

Article 24 of this Convention . [ 56 ] This understanding of the exclusivity principle in the Warsaw Convention was also affirmed by the Court of Appeal of Hong Kong in Ong v. Malaysian Airline System Bhd , [2008] 3 H.K.L.R.D. 153, the High Court of Ireland in Hennessey v. Aer Lingus Ltd. , [2012] IEHC 124 (BAILII), the Court of Appeal of New Zealand in Emery Air Freight Corp. v. Nerine Nurseries Ltd. , [1997] 3 N.Z.L.R. 723, the Singapore Court of Appeal in Seagate Technology International v. Changi International Airport Services Pte.

Ltd. , [1997] SGCA 22, [1997] 2 S.L.R.(R.) 57, and the High Court of South Africa in Potgieter v. British Airways Plc , [2005] ZAWCHC 5 (SAFLII). In Canada, courts have adopted the same view: see Gal v. Northern Mountain Helicopters Inc. , 1999 BCCA 486 , 128 B.C.A.C. 290, and Sakka , at para. 30. A similar understanding of the exclusivity principle under the Montreal Convention was affirmed by the supreme court of Germany in Az. X ZR 99/10, March 15, 2011 (online), the Supreme Court of the United Kingdom in Stott , at para. 31, and the High Court of Ireland in McAuley v.

Aer Lingus Ltd. , [2011] IEHC 89 (online), at paras. 6.3-6.6; in Canada, see O’Mara v. Air Canada , 2013 ONSC 2931 , 115 O.R. (3d) 673, and Walton v. MyTravel Canada Holdings Inc. , 2006 SKQB 231 , 280 Sask. R. 1. [ 57 ] To sum up, the text and purpose of the Montreal Convention and a strong current of international jurisprudence show that actions for damages in relation to matters falling within the scope of the Montreal Convention may only be pursued if they are the types of actions specifically permitted under its provisions.

As the Supreme Court of the United Kingdom put it very recently, “[t]he Convention is intended to deal comprehensively with the carrier’s liability for whatever may physically happen to passengers between embarkation and disembarkation”: Stott , at para. 61. [ 58 ] I turn now to address the specific submissions advanced on behalf of the appellants.

(3) Analysis of Appellants’ Submissions (

a) The Montreal Convention Does Not Limit Claims for Compensation for Public Law Claims for Breach of Statute or Fundamental Rights Arising Under Quasi-Constitutional Statutes Such as the Official Languages Act [ 59 ] The appellants contend that the Montreal Convention does not limit claims for damages sought in relation to public law claims or breaches of quasi-constitutional statutes.

To place this submission in its statutory context, the appellants assert that their claims for damages under the OLA do not fall within the substantive scope of the Montreal Convention , that is to say the areas of air carriers’ liability that the latter purports to cover. Since language rights claims would escape this substantive scope, their claims for damages would not be within the type of “action for damages” contemplated by

Article 29 of the Montreal Convention and the exclusivity principle contained therein would therefore not apply. In support of this submission, the appellants principally argue that the violation of language rights is not an inherent risk to air carriage covered by

Article 17 and that the Montreal Convention intends to govern neither statutory claims based on fundamental rights nor the “public law damages” they would give rise to. In my view, this position has no support in the text or purpose of the Montreal Convention or in the international jurisprudence. (

i) The Appellants’ Argument Is Inconsistent With the Text and Purpose of the Montreal Convention [ 60 ] I have already discussed the breadth of the language that is used in

Article 29 to describe the basis of the claims that are subject to the Montreal Convention ’s limitations. The limitation applies to “any action” in the carriage of passengers, baggage or cargo, “for damages, however founded , whether under this Convention or in contract or in tort or otherwise ”.

There is no hint in this language that there is any intention to exempt any “action for damages” in the carriage of passengers, baggage or cargo depending on its legal foundation, such as when a plaintiff brings forward a statutory monetary claim of a public law nature based on the breach of quasi- constitutional rights. As Dr.

Chassot has said, both the terms “action” and “damages” must be understood in a broad sense; to do otherwise would unduly limit the ambit of the Montreal Convention in a way that was not intended: see pp. 176-77. [ 61 ] The Thibodeaus’ claims are an “action for damages” within the meaning of

Article 29, as they claim damages for injuries suffered in the course of an international flight. This is clear from the way in which the claims were asserted and from the application judge’s reasons. [ 62 ] The Thibodeaus referred in their pleading to what they were claiming as damages. Their claims for damages, as set out in

Part III (

a) and (

b) of their notice of application, filed with the Federal Court, included $25,000 in damages and $250,000 in punitive and exemplary damages for each of them. In response to these claims, the Federal Court awarded damages to compensate the Thibodeaus for the injury flowing from the breaches of their language rights.

As the judge at first instance put it, “the applicantsʼ language rights are clearly very important to them and the violation of their rights caused them a moral prejudice, pain and suffering and loss of enjoyment of their vacation ”: para. 88 (emphasis added). (Although the judge decided against awarding punitive or exemplary damages in this case, I note in passing that such damages are excluded by the concluding words of

Article 29, even in actions that are otherwise permitted under the Montreal Convention .) [ 63 ] In short, damages for moral prejudice, pain and suffering and loss of enjoyment of their vacation are what the Thibodeaus sought in their court proceeding and such damages are what the judge awarded.

[ 64 ] Permitting an action in damages to compensate for “moral prejudice, pain and suffering and loss of enjoyment of [a passenger’s] vacation” that does not otherwise fulfill the conditions of

Article 17 of the Montreal Convention (because the action does not relate to death or bodily injury) would fly in the face of

Article 29. It would also undermine one of the main purposes of the Montreal Convention , which is to bring uniformity across jurisdictions to the types and upper limits of claims for damages that may be made against international carriers for damages sustained in the course of carriage of passengers, baggage and cargo. As the international jurisprudence makes clear, the application of the Montreal Convention focuses on the factual circumstances surrounding the monetary claim, not the legal foundation of it.

To decide otherwise would be to permit artful pleading to define the scope of the Montreal Convention . (ii) The Appellants’ Argument Is Inconsistent With International Jurisprudence [ 65 ] The abund

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