|
Public International Law - Implementation of Treaties. Zoghibi v. Air Canada [International Convention on the Elimination of All Forms of Racial Discrimination]
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court considers conflicts between an implemented international treaty, the Carriage by Air Act and the CHRC:(4) Should the Commission have taken into account article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination?
[58] The appellant submits that the Commission should have taken into account article 6 of the International Convention on the Elimination of all Forms of Racial Discrimination.
[59] This submission fails. It was reasonable for the Commission not to take into account this Convention.
[60] The appellant misunderstands how international law can be used when administrative decision-makers and courts decide domestic issues. This issue is now well-settled by a Supreme Court decision that binds administrative decision-makers and courts alike: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, 471 D.L.R. (4th) 391 at paras. 43-48.
[61] In the present case, Canadian domestic law has adopted into Canadian law an international convention, the Montreal Convention, with all of its limitations on damages liability in article 29. In cases such as this, we are to interpret and implement article 29: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398.
[62] The Montreal Convention, with its limitations on damages liability in article 29, which is now a part of Canadian domestic law, is clear and unequivocal. It does not leave open exceptions for possible liability, such as international law norms and principles, human rights claims or avenues for liability under other international instruments such as the International Convention on the Elimination of all Forms of Racial Discrimination. Nor does the International Convention on the Elimination of all Forms of Racial Discrimination, when read and understood, reveal some sort of ambiguity in article 29 of the Montreal Convention. The Montreal Convention is neither vague nor ambiguous. Nor is there any extrinsic material behind it that helps the appellant. The Montreal Convention slams the door shut. It does not leave even a crack in the door.
[63] The appellant submits that article 6 of the International Convention on the Elimination of all Forms of Racial Discrimination requires Canada to provide a remedy of damages for racial discrimination in international aviation despite the Montreal Convention and its incorporation into Canadian domestic law by virtue of the Carriage by Air Act. But assuming the appellant is correct, this Court has no power to issue mandamus requiring Canada to legislate to fulfil that requirement. Nor can this Court use that supposed requirement—not part of domestic law—to somehow amend the clear language of the Carriage by Air Act and the Montreal Convention.
(5) Does the Canadian Human Rights Act prevail over the Carriage by Air Act?
[64] As mentioned above, this is a new issue — one that was not raised before the Commission. But it can be dealt with in short order. As a matter of statutory interpretation, the Carriage by Air Act and article 29 of the Montreal Convention are clear and unambiguous. They prohibit all damages claims however asserted. The appellant has offered nothing in terms of text, context or purpose to suggest that somehow the Carriage by Air Act and article 29 of the Montreal Convention, despite their clear language, allow for damages claims arising from domestic human rights statutes. As well, the Supreme Court’s decision in Thibodeau is dispositive. Just as the language rights legislation in that case did not prevail over the Montreal Convention, the same must be true here: see paragraphs 54-57, above. . Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks)
In Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) (Div Ct, 2021) the Divisional Court set out how international treaties become Canadian (or Ontario) law:[92] International treaties or declarations do not have automatic force in Canada. They become part of domestic law when implementing legislation is passed by the legislative entity with the authority to enact such legislation in accordance with the division of powers under the constitution. Ontario has not implemented the ICCPR with respect to its environmental laws. Accordingly, these instruments had no mandatory effect and cannot provide justification to make the declaration of a violation of international law.
|
