View PDF: 2018-06 (Nov 23-18)
In a recent case dealing 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 violated a passenger’s right to be served in French.
The Federal Court found that Air Canada failed to serve a passenger in French during an incident where the passenger was removed from a flight to Fort Lauderdale and when Air Canada sent him a copy of its Tariff in English in response to the incident.
However, the Federal Court refused to grant a monetary remedy for these incidents, on the basis that the Montreal Convention governs monetary remedies available for passengers on international flights.
The Official Languages Act
Most airlines are not legally required to serve passengers in one of Canada’s two official languages.
Indeed, Air Canada and its affiliate, Jazz, are the only airlines that are required to comply with Canada’s Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.) (“OLA”) due to the airline’s status as a formerly state-owned corporation.
Air Canada was privatized in 1988 on the condition that the OLA would continue to apply to the airline.
Although Air Canada is no longer a state-owned corporation, it is under a statutory duty to comply with the OLA and its Regulations under section 10 of the Air Canada Public Participation Act, R.S.C., 1985, c. 35 (4th Supp.).
In November of 2009, the complainant, Mr. Leduc, boarded a flight from Fort Lauderdale, Florida, bound for Montreal, Québec.
While the airplane was still on the ground, Mr. Leduc was removed by three police officers.
Mr. Leduc claimed that he was kicked off the flight because he asked that Air Canada employees serve him in French.
According to Air Canada, Mr. Leduc was removed from the flight because he was sitting in an unoccupied business class seat and ignored Air Canada employees who asked him to take the seat assigned to him in economy class. Air Canada claimed that Mr. Leduc used vulgar, rude and abusive language towards their employees.
A few weeks later, Air Canada sent a letter to Mr. 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 to the letter its Tariff, pursuant to which it is allowed to refuse to transport passengers in these circumstances. However, Air Canada only attached an English language copy of its Tariff.
Official Languages Complaints
Mr. Leduc made two complaints to the Commissioner of Official Languages of Canada claiming that Air Canada violated his language rights by refusing to serve him in French in relation to the November 2009 flight.
In the first complaint, he claimed that he did not receive service in French while on board the November 2009 flight and that Air Canada only provided him with an English language copy of their Tariff to explain the flight ban imposed on him.
The Commissioner reviewed the case and followed up with Air Canada about their policies. Air Canada subsequently sent Mr. Leduc a French copy of their Tariff.
The Commissioner advised that it considered the situation resolved.
In the second complaint (filed two years later), Mr. Leduc claimed that he was refused service in French after he was removed from the November 2009 flight, in the boarding corridor.
The Commissioner concluded that this second complaint was justified because neither of the Air Canada employees involved spoke French and did not request a bilingual employee to serve Mr. Leduc in French.
Mr. Leduc then brought an application claiming damages and other remedies under section 77 of the OLA before the Federal Court.
The Federal Court’s Decision
The Federal Court considered the incident on board the November 2009 flight, the incident in the boarding corridor after Mr. Leduc was removed, and the delivery of an English language Tariff to Mr. Leduc.
Ultimately, the Federal Court held that Mr. Leduc’s language rights were violated by Air Canada’s conduct on two occasions:
1) In the boarding corridor once Mr. Leduc was removed from the November 2009 flight; and
2) When Air Canada sent an English language Tariff to Mr. Leduc.
The Court found the first violation to have been minimally harmful, and found that Air Canada had taken steps to improve service delivery in both official languages since the complaint was made.
The second violation—not sending a bilingual Tariff—was promptly corrected by Air Canada.
In his application, Mr. Leduc claimed that he was owed:
- $4,500 in damages;
- A declaration from the Court that Air Canada had violated his language rights;
- An order that Air Canada provide a letter of apology for these violations;
- An order the transportation ban imposed by Air Canada be lifted; and
- An award costs in his favour.
The Court held that the only appropriate remedy in this case was a declaration that Air Canada had violated Mr. Leduc’s language rights.
The Court held that Mr. Leduc’s claim for $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 governed any monetary remedies available to passengers on international flights.
The Court did noted that a remedy, such as a letter of apology or a declaratory judgment, could be possible, despite the Montreal Convention governing, but did not think the remedy was appropriate in this case.
As for Mr. Leduc’s request that the Federal Court lift his travel ban with Air Canada, the Court held that it did not have the authority to order this remedy.
This case reaffirms that international conventions govern the monetary remedies available to passengers flying internationally, whether on board, boarding, or disembarking from an aircraft.
However, non-pecuniary remedies, such as declarations and letters of apology may be available in appropriate circumstances.