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How aviation laws could change after a passenger couldn't order a 7-Up

In 2009 Mr Michel Thibodeau and his wife embarked on two separate round-trip flights leaving from Canada and travelling out of the country. When Mr Thibodeau failed to successfully order a 7-Up on the flight in French, he didn’t just complain about the poor service on the airline, but decided to sue Air Canada for more than half a million dollars for breaching its obligations under the Official Languages Act (OLA).

Under the OLA, which is a quasi-constitutional statute, Canadians are entitled to communicate with federal institutions in either French or English.  The OLA protects this right and clarifies other rights and obligations under the Canadian Charter of Rights and Freedoms.  Although Air Canada was privatised in 1989, the airline retains its language obligations, as it had formerly been a crown corporation.

Mr Thibodeau alleged that the basis of his claim didn’t simply relate to being given a Sprite instead of a can of 7-Up, but that he and his wife were denied services in French at least 8 times during the course of their two round-trip flights on Air Canada and its contract carrier, Jazz Air. The additional complaints made by Mr Thibodeau included there being no French services on a flight from Charlotte to Toronto, and baggage and flight announcements in Toronto being made only in English.

Mr Thibodeau, who is fluently bilingual, stated, “if I take a flight and I’m not served in the language of my choice, and I don’t do anything about it, then my right is basically dead. I was not asking for anything other than what I was already entitled to, I have a right to be served in French”.

The Thibodeaus applied to the Federal Court under Section 77 of the OLA. Section 77 of the act allows complainants to apply to the Federal Court for a remedy if they have previously made a complaint to the Commissioner under some other part of the act. Mr Thibodeau sought a declaratory order regarding the breaches, an apology, $25,000.00 in damages, for each him and his wife and $500,000.00 in punitive damages against Air Canada.

Air Canada admitted that they breached their duties under the OLA by failing to employ a bilingual flight attendant and by failing to provide announcements in both English and French.

Typically, liability in relation to international air travel is governed by the Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on 28 May 1999 (MC99), an agreement which provides a uniform liability framework for air carriers and users of international air travel. However, the Judge found that as Article 29 of the MC99 was silent in relation to awarding damages for an action of this nature, the entitlement to a remedy was to be provided under the OLA. Although Air Canada argued that the MC99 provided the exclusive remedy in international air carriage, the Federal Court found that Parliament did not intend for the OLA to be restricted by other legislation and therefore, the OLA would prevail to the extent of any inconsistencies.

On 13 July 2011, the Federal Court, based on the admissions made by Air Canada, ordered the airline to issue an apology to the Thibodeaus, make reasonable efforts to comply with the provisions set out in the OLA, and to introduce a proper monitoring system and procedures to ensure that they comply with their language obligations. The court also awarded Mr and Mrs Thibodeau damages totaling $12,000.00.

Air Canada appealed the decision of the Federal Court in order to seek answers to the questions:

  1. Does Article 29 of the Montreal Convention exclude the action in damages brought by the Thidbodeaus under the OLA for incidents having occurred during international Air Carriage?
  2. Was the Judge entitled to a general order against Air Canada to comply with the OLA dealing with the obligations of federal institutions in the area of communication with the public and provision of services?
  3. Was the Judge entitled to a structural order against Air Canada?
On 25 September 2012, the Federal Court of Appeal overturned the decision of the Federal Court finding that the Federal Court could not award damages under the OLA for an incident that occurred during international air travel. The Court of Appeal also found that the Federal Court Judge erred in making general and structural orders against Air Canada.  In its reasoning, the Federal Court of Appeal adopted the decision set out in Sidhu v. British Airways, [1997] 1 All ER 193 at paragraph 27, which stated that:

the purpose (of the MC99) is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise.

The Federal Court of Appeal ordered that Air Canada provide an apology to the Thibodeaus and pay $1,500.00 to each passenger with respect to the announcements made at airports, as these were not made during international air carriage and therefore the OLA would still apply. Air Canada was also ordered to pay costs. The Federal Court of Appeal concluded by stating that the

approach does not deprive the Thibodeaus of all of their rights and remedies under the OLA, except that they are not entitled to compensatory or non-compensatory damages for incidents occurring during international carriage, where the Montreal Convention has full force.

Mr Thibodeau will appeal the decision of the Federal Court of Appeal in the Supreme Court of Canada. A hearing has been scheduled for March 26, 2014.

The outcome of the March 26 appeal will be of significant relevance to other future claims involving the MC99 in Australia and elsewhere, specifically regarding which kinds of claims can or cannot be brought by passengers against an airline for damage suffered during international air transport.

Shine Lawyers will monitor the outcome of the appeal and report on the implications the decision has for the Australian travelling public.

Written by Laura Kunde.


Written by Shine Lawyers. Last modified: March 12, 2014.

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