Plaintiffs cannot bring a claim for damages for a breach of fundamental rights against an airline if that breach arose in the course of international travel. Simply put, international flying is a “no-rights zone” between embarkation and debarkation.

In Thibodeau v Air Canada, 2014 SCC 67, the Supreme Court of Canada clarified that the Montreal Convention – adopted by Parliament through the Carriage by Air Act – only allows claims against airlines for: (i) death or bodily injury, (ii) destruction, damage or loss of baggage and cargo and (iii) delay.

The case garnered significant press coverage as a dispute over a 7-Up order (French-language Crusader Pops Air Canada for $12,000). But the issue was whether the Official Languages Act, a legislation of quasi-constitutional status, could provide the Thibodeaus a remedy for Air Canada’s failure to provide services in French on three separate flights between Canada and the United States.

Writing for the majority, Justice Cromwell held that the Montreal Convention has three purposes: (1) to create uniform rules for claims arising in international air transportation; (2) to limit the liability of such carriers; and (3) to balance that goal with the interests of passengers and others seeking a remedy.

Relying on the jurisprudence of foreign courts, he found that an “exclusivity principle” applied, allowing only the types of actions specifically provided for in the Convention. He further approvingly cited a decision of Judge Sotomayor (as she then was) of the United States Court of Appeals for the Ninth Circuit, in which a plaintiff alleged that he was racially discriminated against because he was bumped from an overbooked flight. The court held that civil rights claims could not be brought under the exclusivity regime of the Warsaw Convention (the predecessor to the Montreal Convention). Finally, Cromwell J. found no conflict between the Official Languages Act and the Carriage by Air Act and so refused to determine whether one should prevail over the other.

In dissent, Justices Abella and Wagner focused on the Convention’s history and wording to conclude that the drafters did not contemplate a universal principle of exclusivity. They also held that the Convention “should be interpreted in a way that is respectful of the protections given to fundamental rights”.

The impact of this decision is far-reaching. First, it forecloses claims for damages resulting from human rights and language rights violations during international travel. Second, it prevents other various statutory and common law claims (and class proceedings brought pursuant to those causes of action) against international carriers if these claims do not relate to a type of damage in the Convention.

However, the Court left open the possibility that a non-damages remedy, such as a structural order, could still be imposed on international carriers. While both the majority and the minority set aside the structural order imposed at first instance because it was not justified in the circumstances, the Court did not state that the exclusivity principle prevents such an order.

Faiz M. Lalani