After months of waiting, the fate of the disgruntled man who couldn’t order a 7-Up in his language of choice on an Air Canada flight has finally been decided.
The appeal between Michael and Lynda Thibodeau and Air Canada took place in the Supreme Court of Canada on 26 March 2014, with the decision being handed down just yesterday.
The Supreme Court of Canada, dismissed the appeal, and in doing so, confirmed that the purpose of the Montreal Convention is to provide a uniform and exclusive liability scheme to govern international air carriers, and therefore does not permit an award for damages under Canada’s Official Languages Act (OLA) for an incident that occurred during international air travel.
The court held that by virtue of the wording of Article 29 of the MC99, the damages that Mr and Mrs Thibodeau were seeking were not recoverable, as they were not subject to the conditions and limits of liability set out in the Convention.
Remedies under the OLA are awarded on the basis that it would be “appropriate and just” to do so. In its reasoning, the Supreme Court in Thibodeau found that awarding damages under the OLA for an incident that occurred during the course of international carriage by air would “constitute a breach of Canada’s international obligations under the Montreal Convention” and therefore, cannot be said to be “appropriate and just”.
Although this litigation began because of a bilingual argument over a can of soft drink, the significance of its outcome should not be overlooked. The decision in Thibodeau will affect the rights and remedies available to all passengers travelling internationally by air and will strengthen other superior courts' resolve worldwide to ensure interpretation of the Convention's provisions is as uniform as possible.
The decision means that the law in Canada with respect to claiming damages under the Montreal Convention is on par with the United States, in the US Supreme Court decision in El Al Israel Airlines v. Tseng, 525 U.S. 155 (1999) and also with England as per the UK House of Lords decision in Sidhu v British Airways  1 All ER 193. The decision ensures continuing uniformity in the global jurisprudence of the Convention and thus is welcomed by aviation lawyers such as ourselves.
But, what does this mean for the rest of us, in particular the travelling public?
Following the decision in Thibodeau, passengers in Australia and elsewhere should be aware that they will not successfully be able to claim damages unless they are specifically provided for under the Montreal Convention - i.e. for bodily injury caused by an accident.
To allow for alternative forms of damages to be awarded for other insults which do not cause injury would seriously undermine the purposes of the Convention.
The decision reiterates that the purpose of the Montreal Convention, “is to bring uniformity across jurisdictions to the types and upper limits of claims for damages that may be made against international carriers for damages sustained in the course of carriage of passengers, baggage and cargo”.
Written by Laura Kunde.
Written by Shine Lawyers. Last modified: January 7, 2020.