Thibodeau v. Air Canada 2012 FCA 246
Civil Rights - Language - Right to use French or English in dealings with or within the public service or institutions, etc. - Breach - Remedies
Two Air Canada passengers, the Thibodeaus, filed eight complaints with the Commissioner of Official Languages respecting the lack of services in French for two round trip flights (Ottawa-Toronto-Atlanta/Atlanta-Toronto-Ottawa and Toronto-Philadelphia-St. Maartens/St. Maartens-Charlotte-Toronto). The two passengers complained that there were no services in French on the Toronto-Atlanta and Atlanta-Toronto flights, no services in French at the check-in counter or gate in Atlanta and that a baggage announcement in Ottawa was in English only. Respecting the second round trip, the passengers complained that there were no French services on the Charlotte-Toronto flight and that a baggage announcement in Toronto was in English only. The Commissioner rejected the complaint respecting the check-in counter and gate in Atlanta, because it was not an airport where there was a significant demand requiring the provision of services in French. The Ottawa baggage claim complaint was rejected for want of proof. The Commissioner found that the remaining claims had merit. The passengers applied under s. 77 of the Official Languages Act (OLA) for a remedy for Air Canada’s breach of its linguistic obligations. The passengers sought a declaratory order respecting the breaches, an apology and $25,000 damages. Further, the passengers argued that the breaches were systemic, warranting institutional orders against Air Canada and exemplary and punitive damages. Air Canada did not object to a declaratory order and an apology, but argued that damages were restricted by the Montreal Convention and that the breaches were not systemic.
The Federal Court, in a decision reported 394 F.T.R. 160, granted a declaration, based on Air Canada’s admissions, that Air Canada breached its linguistic duties under the OLA by failing to have a bilingual flight attendant on the Toronto-Atlanta flight, by the pilot’s English- only announcement re arrival time and weather in Toronto on the Atlanta-Toronto flight (untranslated by the bilingual flight attendant on board), by failing to have a bilingual flight attendant on the Charlotte-Toronto flight, and by an English-only announcement concerning baggage collection at the Toronto airport. The entitlement to a remedy under the OLA took precedence over the Montreal Convention where the two conflicted. The court awarded each passenger $6,000 damages, ordered Air Canada to apologize to each of them in writing, ordered Air Canada to make reasonable efforts to comply with its obligations under the OLA (general order) and ordered Air Canada to introduce, within six months, a proper monitoring system and procedures to quickly identify, document and quantify potential violations of its language obligations, particularly to identify Jazz flights where bilingual flight attendants were not assigned notwithstanding a significant demand for service in French (structural order). Air Canada filed an appeal and brought a motion to stay the Federal Court’s order pending appeal under rule 398(1)(b) of the Federal Courts Rules.
The Federal Court of Appeal, per Blais, C.J., in a decision reported 425 N.R. 297, granted the motion and stayed the order pending appeal. Also, the Commissioner of Official Languages was recognized as an intervener -  N.R. TBEd. JA.024. The appeal proceeded on the following issues:
“A) Does Article 29 of the Montreal Convention exclude the action in damages brought by the Thibodeaus under Part IV of the OLA for incidents having occurred during international carriage?”
“B) Was the Judge entitled to a general order against Air Canada to comply with Part IV of the OLA dealing with the obligations of federal institutions in the area of communication with the public and provision of services?”
“C) Was the Judge entitled to a structural order against Air Canada?”
The Federal Court of Appeal allowed the appeal, answering “Yes” to question “A” and “No” to the other two questions. The appeal court held that pursuant to the Montreal Convention, the Federal Court could not award damages under the OLA for the incidents that occurred during international carriage. The applications judge was not entitled to issue the general or structural order against Air Canada. In the result, the appeal court ordered Air Canada (as it agreed to do) to provide a letter of apology and to pay $1,500 to each of the two passengers with respect to an announcement to passengers made in English only concerning baggage claim and procedures for connecting flights at the Toronto airport. Air Canada was also ordered to pay the passengers $6,982.19 in costs.