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
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
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
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
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 17iii 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
iIn 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.
iiDuring embarkation, while on board the
aircraft, and during disembarkation on international
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.
ivThe 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.
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