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
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)
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
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.
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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