Thibodeau v Commissioner of Official Languages of Canada and Air Canada

The decision this week of the Supreme Court of Canada in Thibodeau to dismiss the passengers’ appeal provides a consistent approach to the earlier decisions of the United States Supreme Court in El Al Israel Airlines v Tseng and the United Kingdom House of Lords in Sidhu v British Airways regarding the exclusive application of the Montreal Convention of 1999.

The resulting uniformity in relation to one of the cornerstone principles of the Convention, namely whether the Convention provides the exclusive remedy for those injured in the course of international air travel, will hopefully encourage other jurisdictions around the world to follow suit.

Mr and Mrs Thibodeau claimed damages against Air Canada for moral prejudice, pain and suffering and loss of enjoyment of their international vacation because they were denied services in the French language, as required by the Official Languages Act (OLA).

The purpose of the OLA is to ensure respect and equality for English and French as the official languages of Canada. Air Canada did not dispute that they breached the legislation by failing to provide bilingual cabin attendants but denied the claims on the ground that the Convention did not permit damages for breach of the language rights.[i]

The Convention has the force of law in Canada by the Carriage by Air Act 1985, which sets out the text of the Convention in a schedule to the statute. Article 29 of the Convention relevantly provides:

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring a suit and what are their respective rights. (Emphasis added.)

Consistent with the UK and American authorities, the Canadian Supreme Court said the determination of the exclusivity principle must focus ‘on the location or activity of the passenger when the accident or occurrence directly causing the particular injury giving rise to the claim occurred’.

If the accident or injury occurs within the temporal limits of the Convention,[ii] then the Convention applies and the only causes of action and remedies available against the carrier are those provided under the Convention. It is therefore not possible for a passenger to commence an action for damages against the carrier outside of the Convention.

In this case, the claim fell within the temporal limits of international carriage by air and the Convention therefore applied. The Supreme Court however found that Article 17[iii] did not allow damages for moral prejudice, pain and suffering and loss of enjoyment of a vacation and accordingly, the Thibodeaus were without remedy against the carrier.

We previously reported on recent cases in Australia (Cousins v Nimvale Pty Ltd) and England (Stott v Thomas Cook Tour Operators Limited) regarding the exclusivity principle. The English case sits neatly with the Thibodeau decision whereas the Australian case, on its face, presents an inconsistent outcome. The Australian decision can probably be distinguished on the basis of the wording used in the domestic Civil Aviation Carrier’s Liability Act, which implements the Convention in Australia, and the fact that the claimants were the dependants of the deceased passengers.[iv]

[i] In our alert of March 2014 we discussed the UK decision in Stott v Thomas Cook Wholesalers, where the Court held the Convention did not permit similar damages under the UK Disability Regulations 2007 and the passenger was prevented from pursuing a separate action against the carrier outside of the Convention.

[ii] During embarkation, while on board the aircraft, and during disembarkation on international carriage.

[iii] Article 17 relates to an accident causing the death or bodily injury of a passenger on board the aircraft or in the course of embarking or disembarking.

[iv] The decision of the Western Australian District Court in Cousins v Nimvale allowed the parents of deceased passengers to commence separate common law claims for nervous shock against the carrier in addition to Convention claims for dependency loss. Unlike the Stott and Thibodeau decisions, the focus appears to be more with the substantive scope of the Convention in terms of what damages are permitted. In this regard the District Court said a claim for psychiatric injury to a non‑passenger is not a liability imposed on a carrier in respect of the death of a passenger.