Advocates for the Rule of Law
In a widely circulated decision, a 5-2 majority of the Supreme Court of Canada ruled on October 28, 2014 that an Ottawa couple was not entitled to financial compensation for Air Canada failing to provided services in French.
Affidavit evidence that was before the court noted that Lynda Thibodeau asked in French for a 7Up, but the unilingual English-speaking flight attendant served her a Sprite instead (the gall!).
The couple ended up filing eight complaints with the official languages commissioner over the English-only service they said they received during three trips they took between January and March 2009. Air Canada, in earlier court proceedings, admitted four breaches of the Official Languages Act. Many if not all of those complaints related to the fact there was no bilingual flight attendant on board and there was no translation of an announcement made by the pilot about arrival time and weather on one of the flights.
Instead of the $6,000 the Federal Court awarded to each of the Thibodeaus, the couple will have to settle for an apology from Air Canada, the Supreme Court held. While Air Canada admitted it breached the Act, it relied on the limitations of damages clause set out in the Convention for the Unification of Certain Rules for International Carriage by Air (ironically coined, the “Montreal Convention”).
The relevant clause restricts the types and amounts of claims for damages that may be made against international air carriers. For ‘rule of law’ junkies, this decision can be seen as a win for those who support the notion that the interpretation of laws should be based on the text of the statute. The majority held that the Montreal Convention’s uniform and exclusive scheme of damages liability for international air carriers simply does not permit an award of damages for breach of language rights. The majority noted that to hold otherwise would, among other things, “do violence to the text and purpose of the Montreal Convention” and depart from Canada’s international obligations.
One of the issues in the case was whether the Montreal Convention actually conflicts with the Official Languages Act which permits a remedy of monetary damages for certain breaches of one’s language rights.
The Supreme Court noted that courts should presume that legislation passed by Parliament does not contain contradictions or inconsistencies and only find that such conflict exists when the provisions are “so inconsistent that they are incapable of standing together.” When applying these principles, the majority held that there was simply no conflict:
When we apply these principles, we see that the provisions in issue here do not conflict. They have markedly different purposes. The remedial provisions in the OLA cannot be understood to be an exhaustive code that requires damages to be available in all settings and without regard to all other relevant laws. Moreover, the power to grant an “appropriate and just” remedy may easily be reconciled with the specific and limited exclusion of damages in the context of international air travel. A remedy is not “appropriate and just” if awarding it would constitute a breach of Canada’s international obligations under the Montreal Convention. (para. 90)
Contrast the textual approach by the majority with Madame Justice Abella’s dissent. Abella J. notes that “the process of treaty interpretation is a process of discernment. The literal meaning of the words is rarely reliably able to yield a clear and unequivocal answer. The intention of state parties must therefore be discerned by using a good faith approach not only to the words at issue, but also to the contest, history, object and purpose of the treaty as a whole.”
Respectfully, one of the bedrocks of our legal system requires laws to be clear, publicized, stable and interpreted with consistency such that individual reading a particular statute can reasonably ascertain scope of the law and its application. That is why laws are sometimes struck down for being vague. Part of ensuring that the rule of law is maintained necessitates a textual approach to interpreting legislation. History is important. The object and purpose of the particular legislative scheme is important as well. But everything must start and end with the actual words that the democratically elected legislature felt important enough to include.
It’s a good thing majority rules…
