Michel and Lynda Thibodeau brought an action seeking damages under the Official Languages Act against Air Canada for failing to provide service in both official languages during international flights. Air Canada is subject to the Act by virtue of its former status as a Crown Corporation. Because of the flight’s international nature, the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) was also applicable. The Federal Court and the Federal Court of Appeal both agreed that the Montreal Convention prohibits an award of damages for a violation of the Act occurring during an international flight.

At first instance, the Federal Court Judge determined that there was a conflict of laws between the Act and the Montreal Convention, noting that the Act includes a clause that causes it to prevail to the extent of any inconsistency with another act of Parliament. On this basis, the Judge determined that the Act must prevail against the Montreal Convention and awarded the Thibodeaus $4,500 in damages.

The Federal Court of Appeal came to a different conclusion on the conflict of laws issue, noting that the Act provided for a flexible regime of remedies and as such the Act and the Montreal Convention could be read harmoniously. The Court placed great emphasis on the Parliamentary record with respect to the award of damages under the Act, where the Government noted that the power to award damages was to be used in only in appropriate situations. As such, it overturned the Federal Court decision on the basis that a remedy other than damages would have been effective while maintaining compliance with the Montreal Convention.

This case poses the interesting question of how a quasi-constitutional statute, such as the Act, interacts with an international treaty to which Canada has subscribed. The appellate court and the court of first instance were divided on the issue of whether there was a conflict of laws in this case, and that issue was determinative of the question of damages in both courts. It will be most interesting to see, if the Supreme Court of Canada determines that there is in fact a conflict of laws, how that Court would resolve such a conflict between a quasi-constitutional statute and an international treaty.

Leave to appeal to the Supreme Court of Canada has been granted, and the appeal will be heard on March 26, 2014.