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
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
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.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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