Bersenas Jacobsen Chouest Thomson Blackburn LLP
Bersenas Jacobsen Chouest Thomson Blackburn LLP is a specialized litigation law firm located in downtown Toronto. The firm was established at the beginning of 2005 by seven partners with many years of experience working together in their respective areas of expertise. Several of the firm's members have been recognized as experts in their fields.
In a recent case, the Supreme Court of British Columbia considered whether a helicopter pilot had been instructed to falsify his flight logs. It held that the issue could be reduced to which party's version of events was accepted and ruled in favour of the employer, finding its testimony to be straightforward, forthright and professional – in contrast to the pilot's vague and unconvincing responses.
A recent Supreme Court decision found that aircraft manufacturers can avail themselves of the protections afforded by the General Aviation Revitalisation Act (GARA) regardless of where their products are deployed. However, the protections of GARA apply only to disputes litigated in the United States.
A passenger flew from Montreal to the Republic of Guinea, via Casablanca, with Morocco's national carrier. He departed in August 2011 and was due to return in November 2011, but did not return to Canada until more than one year after his scheduled return date. The passenger had to buy a new one-way ticket for the trip and sued the airline, claiming that it had cancelled his return flight and refused to provide him with an alternate flight. However, his claim was struck out.
Over the past few months the Canada Border Services Agency has been working with the more than 200 foreign air carriers that operate in Canada to transition them to the Interactive Advance Passenger Information Initiative, which takes effect at the end of September 2016. The main changes relate to the description of what information must be provided and the time by which that information must be provided.
The Ontario Superior Court of Justice recently held that for a contractual limitation period to begin to run, it is not necessary that a plaintiff know the precise extent of its loss. In addition, mere discouragement from commencing an action is not enough to prevent the running of a limitation period. This case highlights the importance of staying conscious of limitation periods, even while attempting to find amicable solutions to problems.
NewLeaf Travel Company Inc – a Canadian 'virtual airline' and 'ticket seller' – sells ultra low-cost air services in conjunction with Flair Airlines Ltd. After NewLeaf announced that it would begin flights in February 2016, the Canadian Transportation Agency (CTA) announced that it would review the arrangement to determine whether this particular business model in fact required a licence. The CTA recently issued its ruling.
In 2014 the Canadian Transportation Agency (CTA) issued the 'mistaken fares' trilogy of decisions, holding that in certain circumstances, air carriers can cancel tickets sold to passengers – and reimburse the price paid – where it could show that there had been a mistake in the price. The CTA recently considered this issue again.
Canada has undertaken several consultation processes and updates to the drone regulatory system in the last decade in recognition of the growth in both the commercial and recreational use of this technology. In addition to proposed new regulations addressing the safe operation of drones, the Office of the Privacy Commissioner recently addressed the privacy concerns that have been raised by their increased use.
The British Columbia Court of Appeal recently held that Transport Canada owed no duty of care to International Express Aircharter Ltd (IEA) or its owner following the improper suspension of IEA's air operator certificate. The appeal court agreed with the trial judge that public safety is the "overriding purpose of the power to suspend" an air operator certificate and that the promotion of safety is owed to the travelling public as a whole.
An air passenger rights advocate recently brought an application for judicial review to the Federal Court of Appeal concerning the Canadian Transport Agency's refusal to provide unredacted documents. In making its decision, the court had to consider the "duality of the Agency's functions" and the application of and relationship between the open court principle and the Privacy Act.
In a recent case the appellant successfully appealed a direction issued by a health and safety officer pursuant to the Canada Labour Code following a crash in which a pilot employed by the appellant was killed. The direction required it to take measures to correct a hazard or condition that constituted a danger to employee health and safety, which according to the officer was its failure to ensure that flight times were logged accurately.
The Quebec Superior Court recently rejected a motion brought by WestJet seeking to have a previously certified class action dismissed on the basis that the Canadian Transportation Agency (CTA) had exclusive jurisdiction over the subject matter of the suit. The court concluded that the CTA did not have exclusive jurisdiction over the claim for damages; the class action certified in 2013 will thus proceed.
The Canadian Transportation Agency recently issued an order that will significantly change the way in which scheduled international cargo carriers file their tariffs in Canada. Tariffs may now be submitted through the Air Cargo Tariff manual of the International Air Transport Association (IATA). Any carrier intending to participate may make arrangements with IATA for it to act as filing agent on its behalf.
The Federal Court of Canada recently released a decision relating to the ability of an aircraft parts overhaul and repair facility to prevent the release of a civil aviation safety alert by the minister of transport. The issue arose from a concern by the minister that certain helicopter and drive train parts had been improperly certified. The court's message was clear: those seeking to prevent the minister from issuing a civil aviation safety alert face a high bar indeed.
In 2007 an aircraft owned by Jetport Inc crash-landed in Nova Scotia, resulting in its total loss. Its insurers denied coverage and Jetport sued; in addition, there are related actions involving Jetport's insurance broker. The Ontario Superior Court of Justice recently issued its reasons for decision on a motion by the defendants seeking the production of documents and cockpit and flight data from the Transportation Safety Board.
A recent Supreme Court of Canada decision firmly places the Canadian position on the exclusivity of the Montreal Convention on a par with that of other courts of last resort. When determining what remedies are available against air carriers as a result of damages incurred in the course of international carriage by air, if no cause of action exists within the four corners of the Montreal Convention, then no remedy exists.
In Porter Airlines Inc v Canada, the Federal Court explored the intersection of the Safety Management System (SMS) and the federal Access to Information Act. The court ruled that while the SMS information that Porter reported to the Department of Transport could not be made publicly accessible, the department's own regulatory conclusions based on that information could be made publicly accessible.
Following an incident in which an Air Canada flight crew's negligence resulted in a faulty landing, a passanger suffered from chronic pain syndrome and sued the carrier. The court heard evidence from a wide range of health professionals who had treated the passenger with limited success. The carrier disputed the claim for compensation on the basis that she had failed to mitigate her damages appropriately.
The Canadian Human Rights Tribunal issued a procedural ruling in a complaint made against Air Canada by Mohamed Yaffa, who complained that Air Canada "subjected him to enhanced security screening, because of his race, national or ethnic origin, colour and religion, on six different occasions from March to June 2010". The parties had sought disclosure of particular documents before the hearing.
A series of passenger complaints brought before the Canadian Transportation Agency over the last year has given rise to a previously unused defence that air carriers can avail of where erroneously low fares are offered for sale on the Global Distribution System.
The Federal Court of Canada recently considered a decision of the Canadian Trademarks Opposition Board (TMOB) to refuse registration of Cathay Pacific Airways' Asia Miles design mark (and four other associated marks). In order for the Federal Court to overturn the decision, it had to find that the TMOB's conclusions on use and confusion were unreasonable.
The Quebec Superior Court has ruled again on Jeremy Cooperstock's motion for early dismissal of an application for a permanent injunction brought by United Airlines, Continental Airlines and three United employees. The judge emphasised that anti-strategic lawsuits against public participation legislation should not be allowed to be invoked abusively by defendants.
A Quebec court recently released a decision interpreting Articles 17 and 19 of the Montreal Convention in the context of an airport labour dispute. The plaintiff – travelling from Montreal to Bucharest via Paris – sought damages for delay and personal injury resulting from having to transfer her own bags from one terminal to another at Charles de Gaulle Airport, Paris.
An Ontario court recently found that WestJet did not act unreasonably by denying boarding to a Canadian citizen who had attempted to board a flight home from Jamaica on the strength of his Canadian citizenship card. It found that in doing so, the airline was following directions of the Canadian Border Service Agency, which has encouraged airlines to be vigilant in screening passengers on this route.
Decisions of the Canadian Transportation Agency (CTA) may be appealed directly to the Federal Court of Appeal, but only with that court's leave and where the point in issue is either the CTA's jurisdiction or a question of law. A recent Federal Court of Appeal decision in which leave to appeal was denied illustrates that the court is not inclined to stretch the concept of what amounts to a legal issue in order to assert its jurisdiction.
The Canadian Transportation Agency has issued a decision and an associated interpretation note to set down the baggage rules that air carriers will be expected to apply to interline itineraries with a point of origin or ultimate destination in Canada. The Interline Baggage Rules for Canada will apply to carriage pursuant to a single ticket with an effective date of October 1 2014.
In 2013 the Ontario Superior Court of Justice decided a dispute between Bombardier Inc and Estonian Air. The republic of Estonia succeeded in having the action permanently stayed on the basis that it was immune from the jurisdiction of any court in Canada. Bombardier's subsequent appeal was recently dismissed.
An Embraer 145 at Ottawa Macdonald-Cartier International Airport overran the runway, resulting in a crash, which cost Allianz Global Risks US Insurance Company nearly US$5.5 million. After paying out for the loss, Allianz commenced legal proceedings, claiming contribution and indemnity from NAV Canada and Transport Canada, the regulator of aeronautics in Canada.
The Federal Court recently grappled with defining the boundaries of a 'publicly available air service' – a characterisation which triggers the regulatory oversight of the Canadian Transportation Agency (CTA). In coming to its decision, the CTA found that it had to consider four essential questions in order to determine whether a particular operator is operating an 'air service' falling under its regulatory oversight.
There has recently been further development in the ongoing court battles between Jeremy Cooperstock and United Airlines. Cooperstock is a McGill University engineering professor who has operated a website dedicated to criticising United Airlines for more than 15 years. After United merged with Continental Airlines, it commenced two court proceedings against Cooperstock.
The Canadian Transportation Agency recently considered an accessibility complaint brought against Air Canada by a quadriplegic person who required a two-person transfer from a wheelchair to one of the 'pod' seats installed in many of the airline's business class cabins. It determined that Air Canada's transfer assistance policy constituted an undue obstacle to persons requiring such transfers.
The registrar of trademarks was recently asked to issue a notice which would require Air New Zealand to demonstrate that its AIRPOINTS DOLLARS mark has been used in Canada in the prior three-year period. The registrar upheld the portion of the original scope of the mark relating to the use of the mark with respect to frequent flyer and incentive programmes, but the balance of the scope of the mark was disallowed.
The Canadian Transportation Agency recently released its new policy on wet leasing. In the context of this policy, 'wet leasing' is the leasing of aircraft together with a crew by a Canadian air carrier from a foreign air carrier for use by the Canadian air carrier as part of its own operations. A wet lease can include the whole crew or just the flight crew.
In May 2013 the Canadian Transportation Agency issued a decision holding certain Air Canada tariff provisions relating to compensating delayed passengers to be unreasonable. As a response to this decision, Air Canada put forth a proposed new compensation mechanism for delayed passengers that interwined the regime proposed by Gábor Lukács with that of the United States.
The Canadian Transportation Agency recently ruled on a complaint filed by Gabor Lukács prompted by an incident (reported in the media) where a passenger was removed for taking photographs on board a United Airlines flight. The removal of the passenger was undertaken on the basis that he was violating a prohibition on photography in the cabin, as published in United's in-flight magazine.
In Canada, those who operate a 'publicly available air service' need a licence from the Canadian Transportation Agency (CTA). The Federal Court recently heard a judicial review stemming from a fine imposed by the CTA on a casino for operating such a service without a licence. The casino owned and operated two aircraft that flew between Toronto/Montreal and Atlantic City for the purpose of collecting certain preferred clients.
Gábor Lukács, a former university professor and prolific air passenger rights activist, is well known in Canadian aviation. The Canadian Transportation Agency recently released another decision arising from one of his complaints - this time on the issue of overbooking.
The Ontario Superior Court of Justice recently ruled in a case involving a class action challenging US charges and taxes paid on Air Canada flights. Air Canada brought a motion before the court seeking a declaration that the court had no jurisdiction to adjudicate the dispute and, in the alternative, that it should exercise its discretion to decline jurisdiction.
The Ontario Superior Court of Justice recently issued its decision in Bombardier v AS Estonian Air, which arose out of negotiations between Estonian Air and Bombardier for the purchase of five new CRJ900 aircraft. The court found that there was no real evidence pointing to Estonia's intervention in or interference with the transaction. Thus, Bombardier's claim against Estonia was permanently stayed.
Jeremy Cooperstock operates a website criticising United Airlines and logging passenger complaints. In an ongoing legal battle, Cooperstock recently initiated an anti-SLAPP motion in the Quebec courts against United's permanent injunction application. As Quebec is currently the only Canadian province with anti-SLAPP legislation, its jurisprudence could play an important role for other legislatures and courts in the country.
The Ontario Superior Court of Justice has ruled on a class action arising from a 2011 Air Canada flight. The court made short work of finding that claims for punitive and exemplary damages were not recoverable under the Warsaw and Montreal Conventions. The trickier analysis related to whether the plaintiffs could recover punitive and exemplary damages for Air Canada's alleged negligence in covering up the cause of the incident.
The British Columbia Court of Appeal recently upheld the 2012 decision of the Supreme Court of British Columbia in Unlu v Air Canada. The case related to the practice of several air carriers of identifying the fuel surcharge levied on their tickets in a manner that may cause passengers to believe that these charges are taxes collected by a third party, when in fact fuel surcharges are collected by the airline for its own benefit.
The Federal Court has dismissed an application for judicial review by the minister of transport. The court found that the Transportation Appeal Tribunal of Canada's decision in an appeal by two pilots who had failed their pilot proficiency check over use of the autopilot system was "intelligible, transparent and justified".
In a recent case the Provincial Court of Alberta found the limitation of liability provisions in Air Canada's standard-form air waybill inapplicable. The decision illustrates the manner and extent to which lower-level courts in Canada will go to find in favour of individual plaintiffs in cargo cases and is of interest in understanding how courts of equity deal with such matters.
A business jet insured for C$40 million was rendered a total loss after an accident. The insurance policy included a pilot training clause, requiring any pilot operating the aircraft to have completed a certain amount of classroom and flight training hours. The insurer denied the claim, stating that the pilot's training did not comply with the requirements of the clause. Three actions were commenced as a result of the insurance dispute.
Gabor Lukács has successfully challenged yet another air carrier's tariff before the Canadian Transportation Agency. On this occasion the carrier was Porter Airlines, a regional airline operating out of Toronto. This latest decision is the culmination of the various and sundry battles that Lukács has had against other carriers in recent years.
Following a crash, a passenger brought a claim against the minister of transport and the government on the grounds that their implementation of the safety management systems within the regime created by the Canadian Aviation Regulations created a lax regulatory environment that contributed to the circumstances of the crash. However, the court concluded that neither party owed the passenger a duty of care.
The Supreme Court of British Columbia recently held that course materials used in Ministry of Transport training were protected by solicitor-client privilege, and consequently the crown could not be ordered to produce such materials. The case commenced when International Express Aircharter Ltd challenged the revocation of its operations manager's authority, and the resulting suspension of its air operator certificate.
The Canadian Transportation Agency recently dealt with a complaint by a passenger who sought the lifting of a travel ban imposed by Air Canada, as well as his request for C$30,000 in monetary compensation for events surrounding an incident involving a missed flight. The agency accepted Air Canada's submission that the passenger had the burden of proving that it had incorrectly applied the terms of its tariff.
The Canadian Transportation Agency recently decided a complaint involving the validity of a medical clearance that was given without full information. The case involved an Air Canada passenger who was noted to have suffered an epileptic seizure on a previous flight, and who was asked to obtain a medical clearance before she could travel.
Following a hot air balloon accident in which many passengers were seriously injured and two died, the pilot sued the manufacturer of the balloon. In reaching its decision, the court considered the evidence and the competing theories of liability, placing significant emphasis on the fact that the expert witnesses could not determine whether the failure was the result of defective manufacturing or improper use in the field.
The International Air Transport Association (IATA) made an application to the Quebec Superior Court for an order regarding the final settlement of Mexicana's outstanding balance with the IATA Clearing House and for the final distribution of the IATA Billing and Settlement Plan and IATA Cargo Account Settlement Systems. After considering evidence filed on the application, the court approved a settlement process.
The Federal Court of Appeal has overturned decisions by the Canadian Human Rights Tribunal and the Federal Court of Canada regarding the mandatory retirement of Air Canada pilots. Unlike the tribunal and the Federal Court of Canada, the appeal court determined that a provision in the collective agreement between Air Canada and the Air Canada Pilots Association that required pilots to retire at 60 was constitutionally valid.
In a claim relating to an air crash, the plaintiff sued, among others, an "advertently misnamed corporate defendant". After the expiry of the limitation period, the plaintiff sought to substitute another company, Viking Air Ltd, for that defendent or to add Viking as a defendant. However, Viking's role was as the holder of the type certificate for the aircraft, meaning that it had published the flight and maintenance manuals.
The Canadian Transportation Agency has issued five related decisions which examine the tariff rules of Air Canada, WestJet and Air Transat and give directions on the nature of the air carrier's obligations in cases of cancellation or overbooking. The agency has adopted an approach which requires consideration of the passenger's circumstances and the carrier's knowledge of them.
A revision to Air Canada's international cargo tariff would have made clear that the airline would not transport monkeys for research and vivisection. However, a number of complaints have questioned whether the amendment passes the statutory reasonableness test. The Canadian Transportation Agency has issued an interlocutory decision which sets out the framework for determining the issue.
Two decisions highlight the Canadian Transportation Agency's approach to disabilities and reasonable accommodation. One was the final step in a series of decisions on the carriage of pets in the cabin, resulting in the agency clearly rejecting a total ban; the other reflects the ability of the agency to appreciate carriers' attempts to make reasonable accommodation for passengers with mobility issues.
In March 2010 Skyservice Airlines Inc became another casualty in the history of Canadian low-cost carriers. On its demise, it left over C$1.5 million in unpaid airport charges and fees for air navigation services. The Ontario Court of Appeal recently had to decide who would bear these costs: the service providers or the lessors of the aircraft.
Gábor Lukács is well known to many air carriers operating in Canada as a passenger rights activist. Two of Lukács's recent complaints, brought against United Airlines, were recently adjudicated. The complaints pertained to the signage at United's airport check-in counters, its 'Delayed and damaged baggage' web page and its policy regarding such baggage.
Under 2009 amendments to the Air Transportation Regulations, international air carriers selling flights to and from Canada online must keep current on their websites the terms and conditions of carriage found in their international tariffs on file with the agency. The Canadian Transportation Agency recently held that Iberia had failed to comply with these regulations.
Following Mark McLean's death in a plane crash, his wife sought to collect as the beneficiary under her husband's life insurance policy. In a bid to have the accidental death rider, which granted coverage for C$1 million, apply to the death of her husband, Mrs McLean commenced an action alleging that the definition of 'common carrier' was ambiguous and, consequently, the policy should be interpreted in her favour.
A recent pricing complaint illustrates the extent and limit of the Canadian Transportation Agency's ability to regulate the price of domestic air fares. A passenger filed a complaint against Air Canada's high fares on a monopolised route. The agency found Air Canada's range of fares on this route to be inadequate. However, when a competitor commenced operating a flight on this route, the agency's remedial order had to be rescinded.
The estate of a pilot involved in a fatal accident sought recovery of the aircraft's value from his insurer. At the time of the accident the pilot held a private pilot's licence, but his medical certificate had expired; the insurer denied coverage. The denial was upheld on appeal with the introduction of new evidence clarifying that a pilot's licence must be accompanied by a valid medical certificate in order to be valid itself.
The Canadian Transportation Agency has had several occasions to consider complaints of persons with allergies who object to conditions encountered while travelling by air. Most recently, the agency released an important decision which confirms that carriers may carry cats as pets in the cabin, subject to meeting certain conditions designed to accommodate persons who are allergic to cats.
In Thibodeau v Air Canada Air Canada was ordered to take remedial measures after it was found to have violated the Official Languages Act when it failed to provide bilingual services in four instances. Air Canada applied to stay two of the remedial measures, pending the decision on the appeal. The Federal Court of Appeal granted the stay, using the three-part test found in RJR-MacDonald Inc v Canada (Attorney General).
The air cargo surcharges class action has been winding its way through the courts. In the latest development the Ontario Superior Court of Justice has certified, on consent, the claims against SAS, Qantas, Cargolux and Singapore Airlines, solely for the purpose of settlement. When certification is sought solely for this purpose, the court applies a much-less rigorous test for determining whether certification is appropriate.
A profoundly deaf and blind passenger filed a complaint against Air Canada because of its denial of his request to travel without a personal attendant. In the final decision on the matter, the Federal Court of Appeal essentially restored the decision of the initial decision maker, the Canadian Transportation Agency.
The Ontario Superior Court of Justice had previously held that the International Air Transport Association (IATA) did not breach confidentiality undertakings in marketing its PaxIS product. Sabre Inc, a major global distribution system - the party challenging IATA's right to market the PaxIS product - appealed the decision to the Ontario Court of Appeal, but the appeal was recently dismissed.
A recent decision of the Supreme Court of Nova Scotia has upheld the application of Article 35 of the Montreal Convention and confirmed that it cannot be made subject to a provincial enactment which provides for the discretionary extension of a limitation period. The plaintiff sought to rely on a rail case to justify an extension, but the trial judge correctly dismissed this argument.
The Saskatchewan Queen's Bench recently issued judgment in an aircraft ownership dispute. It held that the registered owner of a Cessna P210N aircraft should, pursuant to the provisions of the Criminal Code, be entitled to receive possession of that aircraft, which had been seized by the police in the course of investigating a crime.
In a recent product liability case defendant Airborne Aero Engines Ltd brought a motion to the Superior Court of British Columbia seeking particulars as to allegations made against it, claiming that these were overly broad as pleaded. The plaintiff argued that, for several reasons, it was too early to provide the requested level of specificity. The judge accepted the plaintiff's arguments, with one exception.
The exclusive jurisdiction of the Canadian Parliament over aeronautics was settled in 1951. Since then, various provincial pieces of legislation have been enacted which, if allowed to stand, would have circumscribed that jurisdiction significantly. However, with few exceptions, Parliament has prevailed.
The Bilateral Aviation Safety Agreement between Canada and the European Union has come into force. The agreement establishes the framework for a broader reciprocal acceptance of the certification of aeronautical products and services. Some of the press releases which followed its entry into force suggested that it would introduce a 'brave new world' overnight, though – unsurprisingly – that is not the case.
A new air services agreement has been announced between Canada and Mexico. This agreement will replace the restrictive agreement previously in force. It should serve to reduce the administrative burden associated with applications for route rights and thus improve the ability to offer more economical air services between the two countries.
In February 2011 the Newfoundland court dismissed Sikorsky Aircraft Corporation's application to prevent Cougar Helicopters Inc from proceeding with a claim against it in that province. This decision was recently upheld by the Newfoundland and Labrador Court of Appeal. In the appeal, Sikorsky challenged the applications judge's ruling that the action could proceed in Newfoundland.
The Canadian Transportation Agency has released its annual report for the fiscal year ended March 31 2011. That date also marked the end of the first three-year period for which the agency promulgated a strategic plan. The agency has now published a new three-year plan for the period from 2011 to 2014. This update summarises the information relating to complaints, regulatory initiatives and licensing matters.
Some commentators remark that there is a lack of communication between Anglophone and Francophone people in Canada. The Official Languages Act is an attempt to bridge this gap by guaranteeing Canadians the right to deal with federal institutions in either official language. Despite privatisation, Air Canada is one such institution, which recently found itself in a battle between the act and the Montreal Convention liability regime.
Following acceptance of a position with Northern Thunderbird Air (NTA), commercial pilot Ryan Van Haren signed a pilot training bond, whereby NTA agreed to train him on a Beechcraft 350 air ambulance and allow him to fly it once qualified. When Van Haren resigned, NTA commenced an action in the British Columbia Small Claims Court, claiming C$5,416.16 as the balance owing on the backdated training bond.
The Canadian Transportation Agency has released another in a series of decisions which have considered how persons with allergies to nuts should be accommodated when travelling by air. Although the agency's conclusions will eventually have an impact on all carriers operating in Canada, the decisions are strictly binding only on Air Canada, as they result from a complaint brought against that carrier.
The estate of a pilot involved in a fatal accident sought recovery of the value of the aircraft from his insurer. At the time of the accident the pilot held a private pilot's licence, but his medical certificate had expired, so the insurer denied coverage. However, the court applied the contra proferentem rule and concluded that the loss was covered. This decision has now been overturned on appeal.
In a recent case a motions judge of the Ontario Superior Court of Justice followed the majority of international jurisprudence on Article 29 of the Warsaw Convention by holding that claims which are not commenced within the prescribed two-year time limit should be summarily dismissed, notwithstanding provisions in the local law permitting minors and persons under a disability to have the time limit tolled.
The Federal Court of Canada recently released a decision describing the procedural steps required to remove a transportation security clearance from an airport employee. Baggage handler Raymond Anthony Clue allegedly purchased a stolen Air Canada parking pass and, as a result, was charged with possession of stolen property. This led to a suspension of his transportation security clearance.
The Transportation Agency has decided to adopt a new approach to making amendments to the Air Transportation Regulations. Rather than attempt to overhaul the regulations in their entirety, the task is being approached in stages. This update discusses the main proposed Phase One amendments which were recently published for public comment.
The Federal Court of Canada recently released an important 127-page ruling in the latest round of the dispute between Air Canada (as well as the Air Canada Pilots Association) and two former pilots who were subject to the Air Canada mandatory retirement provision in their collective agreement, forcing them to retire at the age of 60.
The Ontario Superior Court of Justice recently approved an important settlement that will bring an end to the class action commenced to recover damages arising from the runway overrun of Air France Flight 358 in 2005. The judge observed that the "settlement is the result of an extensive and hard-fought negotiating process".
In 2009 a Sikorsky S-92 helicopter operated by Cougar Helicopters Inc crashed approximately 35 miles off the coast of Newfoundland, resulting in the deaths of 17 passengers and crew and the total loss of the helicopter. There was one surviving passenger. The flight was carrying oil workers to an offshore drilling rig. Two separate legal proceedings ensued as a result of the crash.
In 2010 209 incidents were recorded in which ground-based lasers were pointed at aircraft, thereby disrupting flight. Many of these incidents affected commercial and air ambulance operations. This figure is an 88% increase on the 2009 reports. Some may argue that the courts have been unduly lenient towards offenders - and this trend continues, as evidenced in a recent Alberta decision.
The Ontario Superior Court of Justice recently approved the settlement of a class action lawsuit against the now defunct Skyservice Airlines. While the decision of Justice Perell does not mark a change in the factors that a court must consider when evaluating such a settlement, it does provide a good summary of the issues that are at play.
When Patrick Minot flew from Paris to Boston on an American Airlines flight, it was diverted to Gander, Newfoundland because of his antics on board. The result was a conviction on two charges, a sentence of time served plus three months' probation, a restitution order and a fine. The Court of Appeal for Newfoundland and Labrador has now reviewed the convictions and sentencing and upheld them in all respects.
The Ontario Superior Court of Justice recently released a significant decision regarding the International Air Transport Association's use of data obtained from the global distribution system. The vast majority of air travel on major commercial carriers is booked through private global distribution systems, which are accessed by travel agents when customers seek to purchase airline tickets.
When Robert Honour crashed his helicopter in Duncan, British Columbia, killing himself and his passenger, the spouses of the deceased commenced legal proceedings against Transport Canada and numerous other defendants. After commencing the action, the spouses sought to amend their pleadings to add additional allegations against Transport Canada in the claim.
In June 2010 the Alberta Court of Queen's Bench declined to grant summary judgment in favour of Airco, after it commenced an action seeking to compel the Edmonton Regional Airports Authority to cease from proceeding with the gradual closure of the Edmonton City Centre Airport. In December 2010 the Alberta Court of Appeal released its memorandum of judgment dismissing Airco's appeal of this decision.
A recent Federal Court decision addresses an important jurisdictional issue: the comparative competence of the Canadian Transportation Agency and the Canadian Human Rights Tribunal to address complaints regarding discrimination based on disability in the Canadian transportation network.
A recent decision by an Ontario court expanded on the interpretation of an air carrier's liability for an 'accident' under the Warsaw Convention. The court found that although the accident fell within the definition as given by Article 17 of the convention, under the strict wording of Article 28(1), the case had been brought before the wrong jurisdiction. The court therefore dismissed the case.
The Ontario Court of Appeal recently made an interesting ruling on the application of the Warsaw Convention's two-year limitation period on "bringing an action". The crux of the appeal involved the question of whether a court can extend the time for service of an originating process, where the action is governed by the convention and the limitation period for bringing an action prescribed by the convention has already expired.
The Supreme Court of Canada recently released two related decisions affirming the authority of the federal Parliament to legislate in respect of aeronautics. The cases arose out of attempts in Quebec to restrict the locations in which an aerodrome may be maintained.
The estate of a pilot involved in a fatal accident sought recovery of the value of the aircraft from his insurer. The pilot was not entitled to exercise the privileges of his licence at the time of the accident. However, the court applied a strict contractual interpretation, arguing that the insurance policy required only a licence to be held, and ordered the insurer to pay the claim.
The Supreme Court of Canada recently rendered its decision in Kuwait Airways Corporation v Republic of Iraq. In its decision the Supreme Court unequivocally overturned the decisions of both the Quebec Superior Court and the Quebec Court of Appeal in finding that the Republic of Iraq could not avail itself of the doctrine of state immunity in resisting the enforcement of an order issued against it in the English courts.
In 2005 Air France 358 approached Pearson International Airport during a severe thunderstorm, overshot the runway, pitched into a ravine and burst into flames. There were no fatalities, but many passengers were injured. In December 2009 the Ontario Superior Court ordered the production of the cockpit voice recorder in the litigation arising from the crash. This decision was recently upheld by the Ontario Court of Appeal.
Justice Hughes of the Federal Court recently released an important decision in the longstanding feud between Air Canada and Porter Airlines over access to Billy Bishop Toronto City Airport. The small airport is operated by the Toronto Port Authority and is conveniently located on an island in Lake Ontario very close to the financial centre of Toronto.
Media, Marketing, Sports & Entertainment
A defendant or respondent may bring a motion to dismiss an action as a strategic lawsuit against public participation (SLAPP) and a judge must dismiss the proceeding if he or she is satisfied "that the proceeding arises from an expression made by the person that relates to a matter of public interest", unless the responding party proves certain facts. Two recent decisions have tested the new anti-SLAPP law in a manner that appears to embrace the philosophy behind the statute.
The Ontario Court of Appeal recently upheld the dismissal of a defamation suit brought by Canadian billionaire Mitchell Goldhar against Israel's oldest daily newspaper Ha'aretz. In making its decision, the court considered three factors: whether the Ontario courts had jurisdiction simpliciter over the matter; whether Israel was a more appropriate forum to hear the case; and whether the lawsuit was an abuse of process.
The publishing industry in Canada recently welcomed a Federal Court of Canada decision dismissing a claim in copyright brought by documentary filmmakers against the publisher and author of a fictional novel that was inspired by facts brought to light by the applicants' documentary. In dismissing the application, the court made several statements that are of interest to the media industry for their implications on the creation of historical fiction.