On October 28, 2014, the Supreme Court of Canada, with a 5-2 majority, held that Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”) provides exclusive recourse against airlines for claims arising in the course of international carriage by air, and passengers on international flights subject to the Montreal Convention cannot claim damages against an airline for moral or psychological injury that are not rooted in physical injury or bodily harm. The majority of the Court specifically held that the Montreal Convention does not permit an award of damages for the breach of language rights during international carriage by air
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 (para 6).
Damages Sought for Lack of French Language Services on Air Canada Flights
The Thibodeaus initiated legal proceedings for a lack of French language services on three separate 2009 flights of Air Canada between Canada and the United States, which services are required under the Official Languages Act (the “OLA”). The Federal Court awarded the Thibodeaus damages for moral prejudice, pain and suffering, and loss of enjoyment of their vacation, and also granted a structural order that required the airline to institute a monitoring process.
The Federal Court of Appeal allowed the appeal of Air Canada, finding that the Montreal Convention precluded damages for moral prejudice, and as the Montreal Convention and OLA were not in conflict, damages could not be awarded. The Federal Court of Appeal further concluded that the structural order was not appropriate in the circumstances due to an absence of evidence and the vague wording of the order.
Types of Liability within Scope of the Montreal Convention
The Montreal Convention was adopted in 1999, ratified by Canada in 2002, and became part of federal law through its incorporation as Schedule VI to the Carriage by Air Act, RSC 1985, c C-26. The Montreal Convention applies to most international carriage by air of persons, baggage or cargo. The main provision within the Montreal Convention under analysis by the Court in this decision is Article 29, which 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 suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
Articles 17 to 19 of the Montreal Convention make the carrier liable for damages in the following circumstances:
- Accident causing the death or bodily injury of a passenger on board the aircraft, or in the course of embarking or disembarking (Article 17);
- Destruction or loss of, or of damage to, baggage while in the charge of the carrier (Article 17);
- Destruction or loss of, or damage to, cargo during carriage (Article 18); and
- Damage occasioned by delay (Article 19).
Claim Arising from Violation of Domestic Language Laws Precluded from Montreal Convention, Court Rules
This principle of “exclusivity” by way of limited liability in Articles 29, and 17 through 19, was a dominant theme arising throughout the decision. The Supreme Court also described the three main purposes of the Montreal Convention: (1) uniformity amongst all Montreal Convention signatories, so as to ensure there were no differing standards of liability; (2) protection of the international air carriage industry by limiting the liability of international air carriers; and (3) the protection of the interests of passengers and others seeking recovery. These principles are not only present within the text of the Montreal Convention but also through the interpretation and development of the case law concerning the Montreal Convention internationally.
After a thorough review of international jurisprudence, the Supreme Court concluded that due to the exclusivity principle, unless a claim falls within Articles 17, 18, or 19 of the Montreal Convention, it is precluded entirely.
The Supreme Court dismissed the Thibodeaus’ appeal based on a number of findings, including the following:
- The Montreal Convention was intended to provide uniformity of liability of carriers across jurisdiction.
- The Montreal Convention is the exclusive recourse for “any action for damages” in the carriage of passengers, baggage and cargo (Art. 29).
- Any moral prejudice suffered by the Thibodeaus did not arise from bodily injury or death occurring on the aircraft or while embarking or disembarking.
- The Thibodeaus’ argument that the Montreal Convention does not apply to “public law damages” or statutory claims based on fundamental, quasi-constitutional rights, was not supported by the provisions of the Montreal Convention or international jurisprudence.
- The Thibodeaus’ argument that the failure to appoint a French-speaking attendant happened before embarking the aircraft and therefore fell outside of the temporal scope of the Montreal Convention was held to be inconsistent with the intent of the Montreal Convention.
- The limitation of liability in the Montreal Convention extends to claims for both “individual damages” and “standardized damages”, and interpretation of the Montreal Convention cannot be based on national definitions or categorized damages.
- Structural orders should be granted with caution. They require clarity to ensure they do not result in further litigation, because ongoing supervision by the Courts should only undertaken in exceptional circumstances.
The Court also rejected the Thibodeaus’ argument that the Montreal Convention conflicted with the OLA. The Court concluded that the OLA is intended to preserve and strengthen Canada’s official languages in federal institutions, whereas the Montreal Convention is an internationally agreed upon and uniform scheme addressing damage claims in the field of international carriage by air. The OLA does not require damages in all circumstances, but rather gives the Courts the power to grant “appropriate and just” remedies . This can be easily reconciled with the exclusive nature of the Montreal Convention with respect to the limited liability of air carriers.