Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340

Supreme Court of Canada


Air Canada failed to provide services in French on some international flights as it was obliged to do under the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (the “OLA”). Two passengers, the appellants Michel and Lynda Thibodeau, applied to the Federal Court for damages and for orders, referred to as “structural” or “institutional” orders, requiring Air Canada to take steps in order to ensure future compliance with the OLA. The airline defended against the claims for damages by relying on the limitation on damages liability set out in the Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309 (the “Montreal Convention”), which is part of Canadian federal law by virtue of the Carriage by Air Act, R.S.C. 1985, c. C-26, a federal statute.

And see also [15] to [20]:

[15] On three international flights on Air Canada and in an airport, over the course of roughly four months in 2009, Mr. and Ms. Thibodeau did not receive services in the French language. On some flights, there was no flight attendant able to provide services in French and in some cases passenger announcements on board and in the terminal were made only in English.

[16] On January 23, 2009, while on board a flight from Toronto to Atlanta, Georgia, Mr. and Ms. Thibodeau did not receive services in French because there was no bilingual flight attendant on the aircraft. A few days later, coming back from Atlanta, there was no French announcement made by the pilot or translation of it. On May 12, 2009, the Thibodeaus again did not receive services in French, this time on a flight from Charlotte, North Carolina, to Toronto. Upon arrival in Toronto, an announcement concerning baggage collection was made only in English.

[17] There is no longer any dispute that Air Canada breached its obligations under s. 22 of the OLA on these occasions.

[18] Mr. and Ms. Thibodeau filed eight complaints with the Office of the Commissioner of Official Languages: four complaints related to the breaches described above and four related to other incidents during those two trips. These latter complaints were however rejected by the Commissioner (and later by the application judge) and only the four complaints that were upheld by the Commissioner were subsequently upheld by the application judge: application judge’s reasons, at para. 30.

[19] In response to the Commissioner’s investigation of the Thibodeaus’ complaints, Air Canada put in place remedial measures to improve its capacity to offer bilingual services. These measures led the Commissioner to close its files pertaining to the four complaints that he had found to be established.

[20] The Commissioner also undertook an audit of the bilingual services offered by Air Canada to its passengers and released its report in September 2011, after the Federal Court rendered its decision in the present case (Audit of Service Delivery in English and French to Air Canada Passengers: Final Report (2011)). The Commissioner made 12 recommendations to Air Canada in this audit, recommendations to which the latter responded by suggesting measures and deadlines to implement said measures. The Commissioner declared himself satisfied with Air Canada’s proposed solutions for 11 of the recommendations, and partly satisfied with the answer provided for the remaining recommendation, which I should say is not relevant for the outcome of this appeal. (I note that the reliance of the Federal Court of Appeal on this subsequently acquired report was objected to by the Commissioner. I refer to this audit here simply to complete the factual background of this case and not in relation to the specific issues I will later decide in these reasons.)


Does an award of damages under the Official Languages Act conflict with the Montreal Convention, such that the OLA would need to be “read down” or invalidated as regards international carriage by air? See also [108]:

[108] To paraphrase the Court in Perron-Malenfant, the issue here is whether it defies common sense to assume that by permitting a court to grant an “appropriate and just” remedy for violation of the OLA, Parliament intended that the court would be free to make an order violating Canada’s international treaty obligations. In other words, does it make sense that Parliament intended that a court order in breach of Canada’s international obligations would be an “appropriate and just” remedy? The appellants would have us answer yes to both questions.


[109] With these principles in mind, I return to the question of whether there is a conflict between the broad remedial discretion under s. 77(4) of the OLA and the specific limitation on that remedial authority that results from Article 29 of the Montreal Convention.

[110] These provisions bear all of the hallmarks of the sorts of provisions that have been found not to conflict. They were enacted for markedly different purposes. They may easily be interpreted in a way that permits them to operate together without absurdity: an “appropriate and just” remedy must not violate Canada’s international obligations. The only serious question is whether the so-called presumption of overlap is rebutted because s. 77(4) of the OLA was intended as an exhaustive and exclusive declaration of the court’s remedial power such that damages must always be available for breach of the OLA. This position, in my respectful view, is untenable.

[111] The appellants suggest that the quasi-constitutional status of the OLA prevents a harmonious interpretation of s. 77(4) of the OLA and Article 29 of the Montreal Convention: Commissioner’s factum, at paras. 90-95. The argument goes that to read s. 77(4) as not permitting an award of damages in the context of international air travel would run counter to the OLA’s status as quasi-constitutional legislation and therefore would run counter to Parliament’s intention. With respect, I cannot accept this submission.

[112] Section 77(4) of the OLA is certainly part of a quasi-constitutional statutory scheme designed to both reflect and to actualize the “equality of status” of English and French as the official languages of Canada and the “equal rights and privileges as to their use in all institutions of the Parliament and government of Canada” as declared in s. 16(1) of the Charter: see, e.g., R. v. Beaulac, [1999] 1 S.C.R. 768; Lavigne, at para. 23. Like s. 24(1) of the Charter, s. 77(4) of the OLA confers a wide remedial authority and should be interpreted generously to achieve its purpose. These factors, however, do not alter the correct approach to statutory interpretation which requires us to read “the words of an Act . . . in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Lavigne, at para. 25, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. As I see it, the OLA, read in its full context, demonstrates that Parliament did not intend to prevent s. 77(4) from being read harmoniously with Canada’s international obligations given effect by another federal statute.

[113] It is unlikely that, by means of the broad and general wording of s. 77(4), Parliament intended this remedial power to be read as an exclusive and exhaustive statement in relation to the Federal Court’s remedial authority under the OLA, overriding all other laws and legal principles. The appellants’ position in effect is that Parliament, through s. 77(4), intended that courts should be able to grant damages even though doing so would be in violation of Canada’s international undertakings as incorporated into federal statute law. This proposition runs afoul of the principle of interpretation that Parliament is presumed not to intend to legislate in breach of Canada’s international law obligations: see, e.g., Daniels, at p. 541; Zingre v. The Queen, [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at paras. 128-31; Sullivan, at pp. 539-42.

[114] I find it impossible to discern any such intent in the broad and general language of s. 77(4). Instead, this provision should be understood as having been enacted into an existing legal framework which includes statutory limits, procedural requirements and a background of general legal principles — including Canada’s international undertakings incorporated into Canadian statute law — which guide the court in deciding what remedy is “appropriate and just”.

[115] Moreover, a review of the legislative history of this provision provides no evidence that Parliament intended to authorize awards of damages in violation of Canada’s international commitments. The legislative record shows that members of Parliament discussing the scope of s. 77 of the OLA at the time of its enactment did not focus on the specific remedies available under this provision, but rather on how it gave courts the ability to enforce, through remedies, certain parts of the new OLA, in contrast to its predecessor that was merely declaratory: see House of Commons Debates, vol. X, 2nd Sess., 33rd Parl., February 8, 1988, at pp. 12706, 12712, 12715 and 12737 (Hon. Ray Hnatyshyn, Minister of Justice and Attorney General of Canada, Mr. Jean-Robert Gauthier, Ms. Marion Dewar, Hon. Warren Allmand); House of Commons Debates, vol. XIV, 2nd Sess., 33rd Parl., July 7, 1988, at p. 17224 (Hon. Ray Hnatyshyn, Minister of Justice and Attorney General of Canada). While the debate contemplated that damages could constitute an “appropriate and just” remedy in certain circumstances, it highlighted the open-ended nature of these terms and that they left to the courts the duty of determining what would be an “appropriate and just remedy” in the circumstances: Debates of the Senate, vol. IV, 2nd Sess., 33rd Parl., July 27, 1988, at pp. 4135-36. There is nothing in this to suggest any intent that this power would override other limitations on the court’s authority to award damages.

[116] We are not in a situation like that faced by the Court in Perron-Malenfant in which allowing both provisions to operate empties the remedial provisions in the statute of much of their meaning. It is not suggested that the powers of the Commissioner, including his authority to apply to the Federal Court for remedies under s. 78 of the OLA, conflict with the limitation on damages under the Montreal Convention. Damages are by no means the only remedies available under s. 77(4) and the limitation on their availability set out in Article 29 of the Montreal Convention applies only in respect of claims by passengers arising out of international carriage by air. I therefore reject the contention that my proposed interpretation of the Montreal Convention somehow silences language rights.

[117] In short, there are no indicators here of a conflict between these two provisions in the narrow and strict sense of conflict which applies in this context, and there is no hint in the text, scheme or purpose of the OLA that the brief, broad, general and highly discretionary provision in s. 77(4) was intended to permit courts to make orders in breach of Canada’s international undertakings which have been incorporated into federal law.

[118] I conclude that there is no conflict between these provisions and that, in fashioning an appropriate and just remedy under the OLA in a case of international carriage by air, the Federal Court must apply the limitation on damages set out in Article 29 of the Montreal Convention. In light of that conclusion, I do not need to consider which provision would prevail in the event of conflict.

Useful for

No remedy when none available under the Convention

Treaty provisions considered

Article 29 MC99

Montreal Convention 1999

Legislation considered

Canada Official Languages Act RSC 1985/

Key subjects or concepts