One of the most interesting aspects of aviation law involves the
determination of which legal regime applies to a particular case.
Because aircraft fly across provincial and national borders,
lawyers practising in the field of aviation may find themselves
dealing with provincial law, federal law, foreign law or
international treaties. There are times when all of these laws may
apply and there are times when conflicts between these laws must be
In Thibodeau v. Air Canada, 2012 FCA 246, the Federal
Court of Appeal considered an apparent conflict between the
Montreal Convention and the Official Languages
Act, R.S.C. 1985, c. 31 (4th Supp.) (the "OLA").
This case resulted from a complaint filed by Michel and Lynda
Thibodeau with the Commissioner of Official Languages. The
Thibodeaus complained that Air Canada did not offer them service in
French during two round trips between Canada and the United
In general terms, the Montreal Convention is an
international treaty that governs passengers' claims against
airlines for injury or death suffered during an international
flight or when embarking or disembarking from an international
flight. The Convention also governs claims for loss or
damage to baggage and cargo, and delays in air carriage. The
Convention entered into force in Canada on November 4,
2003, and is incorporated into Canadian law by the Carriage by
Air Act, R.S.C. 1985, c. C-26. It is intended to unify and
codify the rules governing international carriage by air, to
provide greater certainty and predictability and to ensure
protection of consumers.
The OLA requires Air Canada to provide its services in French.
The OLA is meant to apply to federal institutions, but Air
Canada's former obligations as a Crown Corporation were
continued after the company was privatized. Under the OLA, courts
may award damages in "appropriate situations."
Among other remedies, the Federal Court awarded the Thibodeaus
$6,000 each in damages. On appeal, Air Canada argued that the
Federal Court did not have jurisdiction to grant damages in respect
of three of the violations, because these occurred on international
flights, which were exclusively governed by the Montreal
The appellate court agreed, finding that the Convention
precluded the awarding of damages for causes of action not
specifically provided therein. It rejected the position that the
Convention has no force except in cases where it provides
for a remedy, and held that it constitutes a complete code in
respect of the aspects that it expressly regulates. This includes
air carriers' liability for damages, regardless of its source.
The conflict between the Convention and the OLA was
resolved in the following manner. The OLA states that courts may
only award damages under the OLA "in appropriate
situations." Accordingly, the Court ruled that it would not be
appropriate to award damages under the OLA in situations where the
Montreal Convention governs.
The exclusivity of the Convention as a remedy for
claims in respect of international carriage was previously
unsettled in Canada, with courts in different countries taking
opposing views. Some have held that the Convention is the
exclusive legal regime under which a claim may be made, and that if
it is silent on an issue, a remedy is not available. Others have
held that where a cause of action is not provided by the
Convention, it may nonetheless be available under domestic
The Federal Court of Appeal's decision may not be the last
word on this issue, however, as the Thibodeaus have sought leave to
appeal to the Supreme Court of Canada.
This article originally appeared in the February 2013 issue of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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