Canada: Supreme Court Of Canada Confirms Exclusivity Of Montreal Convention On Airline Liability

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.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions