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12 December 2018
In a recent case that dealt with Air Canada's duty to serve passengers in both of Canada's official languages (English and French), the Federal Court held that the airline had violated a passenger's right to be served in French.
The court found that Air Canada had failed to serve a passenger in French during an incident where the passenger had been involuntarily removed from a Canada-bound flight to Fort Lauderdale and when Air Canada later sent him a copy of its tariff in English in response to the incident.
However, the Federal Court refused to grant a financial remedy for these incidents on the basis that the Montreal Convention governs the monetary remedies that are available to aggrieved passengers on itineraries to which it applies.
Most airlines are not legally required to serve passengers in both of Canada's official languages.
Indeed, Air Canada and its affiliate, Jazz, are the only airlines that must comply with Canada's Official Languages Act (RSC 1985, c31 (4th Supp)) due to the airlines' status as a formerly state-owned corporation.
Air Canada was privatised in 1988 on the condition that the Official Languages Act would continue to apply to the airline.
Although Air Canada is no longer a state-owned corporation, the privatisation process required that it continue its statutory duty to comply with the Official Languages Act and its regulations, pursuant to Section 10 of the Air Canada Public Participation Act (RSC 1985, c35 (4th Supp)).
In November 2009 the complainant, Bruno Leduc, boarded an Air Canada flight from Fort Lauderdale, Florida, which was bound for Montreal, Quebec.
While the aircraft was still on the ground, Leduc was removed by three police officers.
Leduc claimed that his removal was a result of his request that the Air Canada cabin crew serve him in French.
According to Air Canada, Leduc had been removed because he was sitting in an unoccupied business class seat and had ignored Air Canada employees when they asked him to take the seat that had been assigned to him in economy class. Air Canada alleged that Leduc had used vulgar, rude and abusive language towards the crew.
A few weeks later, Air Canada sent a letter to Leduc informing him that he would no longer be permitted to fly with Air Canada unless he could demonstrate that he would not present a security risk to other passengers.
Air Canada attached its tariff to the letter pursuant to which it is allowed to refuse to transport passengers in these circumstances. However, Air Canada attached only an English language version of its tariff.
Leduc filed two complaints with Canada's commissioner of languages alleging that Air Canada had violated his language rights by refusing to serve him in French on the November 2009 flight.
In the first complaint, he claimed that he had not received service in French while on board the November 2009 flight and that Air Canada provided him only with an English language copy of their tariff to explain the flight ban that was later imposed on him.
The commissioner reviewed the matter and followed up with Air Canada about its policies. Air Canada subsequently sent Leduc the French version of its tariff.
This caused the commissioner to consider the first complaint resolved.
In the second complaint (filed two years later), Leduc claimed that he had been refused service in French on the jet bridge after he had been removed from the November 2009 flight.
The commissioner concluded that this second complaint was justified because neither of the Air Canada employees involved spoke French and the airline had not attempted to locate a francophone agent to provide communications in French.
Leduc then brought an application claiming damages and other remedies under Section 77 of the Official Languages Act before the Federal Court.
The Federal Court considered the incident on board the November 2009 flight, the incident in the jet bridge after Leduc had been removed and the delivery of an English language tariff to Leduc.
Ultimately, the court held that Leduc's language rights were violated by Air Canada's conduct on two occasions:
The court found the first violation to have been minimally harmful, but also that Air Canada had taken adequate steps to improve service delivery in both official languages since the complaint had been made.
The second violation (not sending a bilingual tariff) was found to have been promptly corrected by Air Canada.
In his application Leduc claimed that he was owed:
The court held that the only appropriate remedy was a declaration that Air Canada had violated Leduc's language rights.
The court held that Leduc's claim for C$4,500 in damages for the violation of his language rights on board and while disembarking the aircraft were barred by virtue of Articles 17 to 19 and 29 of the Montreal Convention, as this was an international flight from Canada to the United States.
The court cited previous decisions which provided that the Montreal Convention governs any monetary remedies available to passengers on international flights.
The court noted that a non-financial remedy (eg, a letter of apology or a declaratory judgment) was within its jurisdiction, despite the applicability of the Montreal Convention, but that such a remedy was inappropriate in this case.
As for Leduc's request for a lifting of his travel ban with Air Canada, the court held that it did not have the authority to order this remedy.
This case reaffirms that the Montreal Convention governs the monetary remedies that are available to passengers flying internationally, whether on board, boarding or disembarking from an aircraft.
However, non-pecuniary remedies (eg, declarations and letters of apology) may be available in appropriate circumstances.
For further information on this topic please contact Carlos P Martins or Emma Romano at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (email@example.com or firstname.lastname@example.org). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.
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Carlos P Martins