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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.
In 2005 an Air France Airbus A340 landed in Toronto in bad weather and went off the end of the runway. Although the aircraft was destroyed, there were no fatalities. A number of proceedings, including a class action, to recover damages for bodily injury, emotional distress and property loss followed. The class action has been settled against all defendants, except NAV Canada.