7UP for Your Rights: Thibodeau v Air Canada
In what has been dubbed “the 7UP case,” a majority of the Supreme Court of Canada (“SCC”) has ruled in Thibodeau v Air Canada, 2014 SCC 67, that Michel and Lynda Thibodeau are not entitled to a damage award that would have required Air Canada to take steps to ensure compliance with the Official Languages Act, RSC 1985, c 31 (4th Supp). (NB: Although I admit the name of the case did influence my decision to write on it, I have no known relation to these Thibodeaus; the name “Thibodeau” is as common as “Smith” in some places.)
The Thibodeaus took issue with Air Canada’s failure to provide announcements in French and to have a French-speaking flight attendant on their flights with the airline. The Thibodeaus filed a series of complaints to the Commissioner of Official Languages, to which Air Canada responded with remedial action to improve bilingual services. Nonetheless, the SCC found that Air Canada breached its obligations under section 22 of the Official Languages Act.
In addition, the Thibodeaus made a claim for damages and structural orders of compliance in the Federal Court under section 77 of the Official Languages Act. In response, Air Canada relied on the limitation on damages liability set out in the Convention for the Unification of Certain Rules for International Carriage by Air, 2242 UNTS 350, Article 29 (“Montreal Convention”), which places restrictions on claims for damages against international air carriers. Article 29 of the Montreal Convention states:
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.
The Majority Decision
The Supreme Court majority was persuaded by Air Canada’s claim of a limitation on liability under the Montreal Convention. The majority also reasoned that the trial judge’s award of “structural” damages could not be upheld, as the order was too vague. The majority also made note of the French wording of the same exclusivity provision, which states “toute action en dommages-intérêts, à quelque titre que ce soit… .,” in concluding that the Montreal Convention is clear in its limitation of all “action for damages.” As a result, the majority found that this provision of the Montreal Convention provides the only recourse for claims arising in the course of international carriage by air.
Yet, despite this language, can it really be possible to “contract out” or, “convention out” of our rights? The dissent, represented by Justices Abella and Wagner, did not think so and agreed with the findings of the Federal Court.
At the Federal Court, it was found that although there was a conflict between the limitations set out in the Montreal Convention and the Official Languages Act, the Official Languages Act should prevail: Thibodeau v Air Canada, 2011 FC 876. As a result, the Thibodeaus initially were entitled to both damages and a structural order. However, the Federal Court of Appeal set aside the award of damages as well as the structural order in holding that the Montreal Convention precluded the damages remedy and that a structural order was not appropriate: Air Canada v Thibodeau, 2011 FCA 343.
The Supreme Court ruled that the Federal Court of Appeal was correct in setting aside the original structural order as it was imprecise and would have created a need for ongoing judicial supervision, which was inappropriate in the circumstances.
One of the big questions in the case was how to resolve the apparent conflict between the language of the Montreal Convention and section 77(4) of the Official Languages Act. Section 77(4) provides for a remedial authority and is part of a “quasi-constitutional” statutory scheme formed to promote the equal status of English and French as official languages of Canada. In the interpretation of this apparent conflict, the majority held that the rules of statutory interpretation necessitate that a statute should be read in its ordinary sense. The majority also looked at parliamentary intent in finding that Parliament did not intend to prevent a harmonious reading of section 77(4) with Canada’s international obligations.
The Dissenting Opinion
In contrast, Justices Abella and Wagner dissented in finding that the Montreal Convention does not bar a damage award for breach of language rights during an international air trip. The dissent held that the interpretation of the Montreal Convention should be in accordance with the expressions afforded to fundamental rights, given the constitutional significance of those language rights under the Canadian Charter of Rights and Freedoms (“Charter“).
The dissent reasoned that conventions of international law should enhance, not diminish, rights protected by domestic law. The dissent noted that treaties should be interpreted purposively and contextually, in both present and historical contexts. As such, the dissent (like the majority) detailed the emergence of the Montreal Convention in 1999 as a replacement for the earlier Warsaw Convention, with both conventions providing for limitations on tort liability for passenger injuries, lost luggage and the like.
Yet, the dissent found that Article 29 of the Montreal Convention should not be interpreted in a way that provides limitations on liability for airlines other than for damages as a result of “the carriage of passengers, baggage and cargo.” As the Thibodeaus had not suffered death or bodily injury, the Montreal Convention was not applicable. As a result, the dissent would have allowed the appeal by the Thibodeaus and upheld the award from the trial judge.
Rights, Privatization and Soda
Although the Thibodeaus have faced criticism for what many deem to be a trivial complaint, there are certainly constitutional issues at stake in this case, which are definitely not trivial.
In addition, the privatization of Air Canada in 1988 with the Air Canada Public Participation Act, RSC 1985, c 35 (4th Supp), must not be forgotten in the legacy of language rights with the airline. In the monumental case of RWDSU v Dolphin Delivery Ltd,  2 SCR 573, the Supreme Court held that the Charter does not apply to private actors. Thus, the airline could not be subject to the language protections of the Charter.
However, as part of that privatization, the Air Canada Public Participation Act provided for the continued operation of the airline in both French and English by subjecting the privatized airline to the Official Languages Act. The latter legislation compels the airline to provide services in both official languages and to maintain a bilingual work place.
Importantly, the minority noted Justice L’Heureux-Dubé’s dissent in Dickason v University of Alberta,  2 SCR 1103, at 1154, that laws “which seek to protect individuals from discrimination acquire a quasi-constitutional status, which gives them preeminence over ordinary legislation.” Moreover, the SCC previously opined in Lavigne v Canada (Office of the Commissioner of Official Languages),  2 SCR 773 [Lavigne], quoting Canada (Attorney General) v Viola,  1 FC 373 (CA), that “[the Official Languages Act] reflects both the Constitution of the country and the social and political compromise out of which it arose” (Lavigne, para 23).
Although the Thibodeaus have been painted as vexatious litigants by the media, suing over a request for soda, the principle behind their actions should not be overlooked. The interpretation that the dissent gave to the Official Languages Act in finding that international conventions cannot diminish our constitutional rights is compelling. As Mr. Thibodeau put it, “Air Canada must be able to provide services in both languages. My rights are compromised if it doesn’t, and I have two choices. I can let it be, and my rights become non-existent, or I can do something. I decided to do something.”