In a judgment handed down on October 28, 2014,1 the Supreme Court of Canada ruled in favour of Air Canada in a matter regarding the application of the Montreal Convention's scheme governing air carrier liability in relation to international flights.2


As a result of three specific instances involving a breach of the Official Languages Act (OLA)3 occurring on international flights, the appellants in Thibodeau v Air Canada brought a claim against Air Canada for compensatory and punitive damages and applied for the issuance of a structural order against the national air carrier. The appellants relied on Section 77 OLA, which gives the Federal Court the power to grant such remedy as it considers "appropriate and just in the circumstances."


In a majority ruling drafted by Justice Cromwell, the Supreme Court dismissed the appeal and found that the applicants' claim was barred by the Montreal Convention, an international treaty adopted in 1999 and incorporated into Canadian law.4

The majority of the court held that the appellants' claim for damages fell squarely within the Montreal Convention's exclusion of liability. According to the majority, the Montreal Convention's text and purpose as well as a strong current of international jurisprudence, made it clear that actions for damages relating to international flights can only be brought if they are expressly authorized by the Convention.

The majority also found that there was no conflict between the general remedial powers given to the Federal Court under the OLA and the exclusion of damages claims under the Montreal Convention. The OLA does not provide that damages should be granted in every case of a breach of the statute; it merely authorizes courts to grant "appropriate and just" remedies. As a result, in the event of a breach of the OLA on an international flight, the exclusion of damages under the Convention must be applied in determining an appropriate and just remedy.

In addition, the court was unanimous in dismissing the appellants' request for a structural order. The order was too imprecise and risked further litigation and ongoing court supervision. The court also pointed out that such orders should only be made in exceptional circumstances, which did not exist in the case at issue.


So, what are the takeaways from this decision?

  • The majority of the court confirmed that when a scheme is based on the principle of exclusivity, as for instance the one established by the Montreal Convention, creating exceptions would compromise the uniformity of the scheme as a whole.
  • In light of the scheme's objective of achieving international uniformity, the majority accorded significant importance to international jurisprudence and refused to depart from the strong international consensus that has developed in relation to the interpretation of the Montreal Convention.
  • By concluding that there was no conflict between the OLA and the Montreal Convention, the majority again gave considerable weight to Canada's international obligations and applied the principle that Parliament is presumed not to intend to legislate in breach of Canada's international law obligations.

Air Canada was represented before the Supreme Court of Canada by Louise-Hélène Sénécal, Assistant General Counsel at Air Canada, and two members of Norton Rose Fulbright's Supreme Court of Canada and Appellate Advocacy team, Pierre Bienvenu, Ad. E., and Andres C. Garin.


1. Thibodeau v Air Canada, 2014 SCC 67.

2. Convention for the Unification of Certain Rules for International Carriage by Air, 2242 UNTS 350.

3. RSC 1985, c 31 (4th supp).

4. Carriage by Air Act, RSC 1985, c C-26.

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