Bersenas Jacobsen Chouest Thomson Blackburn LLP updates

Changes to flight attendant manuals must have reasonable basis
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • October 11 2017

The minister of transport recently appealed a judicial review brought by the Canadian Union of Public Employees. At issue was a change in Sunwing's operating procedures relating to its staffing of flight attendants and whether the change would compromise the safety of passengers and crew members. The Federal Court concluded that ministerial approvals under the Canadian Aviation Regulations require a substantive review of the safety implications of a request, which did not occur in this case.

Court rules that carrier and ground handler need not be added as parties to complaint
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • July 05 2017

A complaint regarding the provision of passenger assistance services named neither the carrier nor the ground handling company as a respondent. Instead, only the Greater Toronto Airports Authority (GTAA) was named. The GTAA asked the Canadian Transportation Agency to dismiss the complaint against it or add the carrier and the service provider as co-respondents to the complaint; however, its request was denied.

Claim for privilege over contents of cockpit voice recorder denied
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • March 29 2017

In a motion brought before the British Columbia Supreme Court, six aircraft passenger plaintiffs sought an order granting them access to the audio data from a cockpit voice recorder, as well as a partial transcript of that data. The Transportation Safety Board did not oppose the request for access, but appeared before the court to explain the enabling legislation and the policy reasons for the statutory privilege that pertains to such recordings.

Fuel surcharge class action for international tickets certified
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • March 08 2017

The Quebec Superior Court recently authorised a class action brought against Air Canada seeking reimbursement of amounts paid to it as a fuel surcharge when purchasing tickets for international carriage. The court dismissed the arguments that it did not have jurisdiction to hear the case and that the representative plaintiff did not meet the requirements for certification.

Helicopter pilot fails in constructive dismissal case
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • December 14 2016

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.

Application of General Aviation Revitalisation Act rejected
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • November 09 2016

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.

Court strikes out cancellation claim
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • September 14 2016

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.

Interactive Advance Passenger Information Initiative: coming soon
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • September 07 2016

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.

Carrier's claim of faulty hangar design ruled out of time
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • July 06 2016

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.

CTA rules that NewLeaf requires no licence – yet
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • June 08 2016

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.

Passenger who took advantage of mistaken fare ordered to pay costs
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • March 30 2016

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.

No duty of care to operator for improperly suspended air operator certificate
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • October 21 2015

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.

Canadian Transportation Agency may not redact personal information
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • August 12 2015

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.

Health and safety direction issued after fatal crash overturned
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • July 22 2015

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.

Quebec Superior Court assumes jurisdiction over accessibility class action
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • July 08 2015

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.

CTA approves air cargo filings through IATA TACT manual
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • May 27 2015

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.

Federal Court upholds minister's intent to issue civil aviation safety alert
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • May 20 2015

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.

Court rules on production of documents in air crash case
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • March 18 2015

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.

Supreme Court of Canada applies Montreal Convention
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • November 05 2014

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.

Tensions between SMS and Access to Information Act
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • October 08 2014

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.

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