Flying Is A No-Rights Zone: Supreme Court Of Canada Dismisses Language Rights Claim

Article by Ranjan K. Agarwal and Faiz M. Lalani, Student-at-Law

Plaintiffs cannot bring a claim for damages for a breach of fundamental rights against an airline if that breach arose in the course of international travel. Simply put, international flying is a "no-rights zone" between embarkation and debarkation.

In Thibodeau v Air Canada, 2014 SCC 67, the Supreme Court of Canada clarified that the Montreal Convention - adopted by Parliament through the Carriage by Air Act - only allows claims against airlines for: (i) death or bodily injury, (ii) destruction, damage or loss of baggage and cargo and (iii) delay.

The case garnered significant press coverage as a dispute over a 7-Up order (French-language Crusader Pops Air Canada for $12,000). But the issue was whether the Official Languages Act, a legislation of quasi-constitutional status, could provide the Thibodeaus a remedy for Air Canada's failure to provide services in French on three separate flights between Canada and the United States.

Writing for the majority, Justice Cromwell held that the Montreal Convention has three purposes: (1) to create uniform rules for claims arising in international air transportation; (2) to limit the liability of such carriers; and (3) to balance that goal with the interests of passengers and others seeking a remedy.

Relying on the jurisprudence of foreign courts, he found that an "exclusivity principle" applied, allowing only the types of actions specifically provided for in the Convention. He further approvingly cited a decision of Judge Sotomayor (as she then was) of the United States Court of Appeals for the Ninth Circuit, in which a plaintiff alleged that he was racially discriminated against because he was bumped from an overbooked flight. The court held that civil rights claims could not be brought under the exclusivity regime of the Warsaw...