Andrew has a varied practice that includes particular experience in media and defamation law, aviation law and administrative law.
He has appeared before the Ontario Court of Justice, Superior Court of Justice, Divisional Court, and Court of Appeal; the Supreme Court of Canada; the Federal Court; and administrative tribunals including the Human Rights Tribunal of Ontario and the Canadian Transportation Agency. Andrew has also acted in proceedings before several other courts, tribunals and inquiries including: the Federal Court of Appeal, the Québec Superior Court, the Canadian Human Rights Commission, the Elliot Lake Inquiry, the Coroner’s Inquest Touching the Death of Ashley Smith, and the Ontario Review Board.
Prior to joining WeirFoulds, Andrew was a Partner at Bersenas Jacobsen Chouest Thomson Blackburn LLP. He articled at a national full-service law firm in Toronto.
Before practising, Andrew was a land claims negotiator for the Ontario government’s Ministry of Indigenous Affairs. He also worked for judges of the UN International Criminal Tribunal for Rwanda, located in Tanzania, where he assisted primarily with research and drafting of decisions relating to the “Butare” trial.
In a recent case, the Nova Scotia Court of Appeal upheld a lower court's authorisation of the conditional release of the contents of a cockpit voice recorder (CVR) to the parties to a class action. The appeal court unanimously affirmed the motion judge's holding that the public interest in the proper administration of justice outweighed the statutory privilege attached to the CVR.
The British Columbia Supreme Court recently certified two class actions against WestJet. In one, the central allegation was that WestJet had charged baggage fees despite stating in its tariff (at least in part) that the first checked bag would be carried for free. In the other, the one-year expiry on travel credits issued by the airline was alleged to violate consumer protection legislation in several provinces.
Even before the first tranche of Air Passenger Protection Regulations (APPRs) provisions came into effect, the International Air Transport Association, Airlines for America and numerous Canadian and foreign air carriers commenced a challenge to the legality of several provisions in the Federal Court of Appeal (FCA). The FCA recently issued a decision in a motion brought by the government to strike portions of two expert reports filed by the airlines in support of their position.
The minister of transport recently issued an interim order regarding the denial of boarding to foreign nationals on international flights to Canada and a health check that air operators flying to Canada must conduct prior to boarding. This article summarises the interim order's key points.
In 2019 the Canadian federal government took steps to address barriers for persons with disabilities, including the introduction of the Accessible Canada Act. In this context, the Accessible Transportation for Persons with Disabilities Regulations – which target federal agencies and federally regulated industries, including aviation – were finalised and published in July 2019. The service requirements applicable to Canadian and foreign carriers will come into force on 25 June 2020.
Following several rounds and many months of consultations, the government recently announced that the Air Passenger Protection Regulations (APPRs) developed by the Canadian Transportation Agency have been finalised. The APPRs apply to all flights within, from or to Canada, whether operated by a Canadian or foreign airline. Once in effect, the regulations will impose obligations on carriers in cases of tarmac delays, denied boarding and delayed and cancelled flights.
Due to an unexpected thunderstorm, some passengers on two Air Transat flights were stranded on the tarmac in the aircraft that they had boarded in Europe for almost five and six hours, respectively. The Canadian Transportation Agency decided to investigate, which is noteworthy as there is little or no precedent for this sort of situation being the subject of an investigation or order by the agency.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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 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.
Canada's anti-spam legislation – including the rules governing unsolicited commercial electronic messages – will come into force on July 1 2014. The new legislation includes consent, identification and unsubscribing mechanism requirements and is widely viewed as one of the most stringent and onerous anti-spam regimes in the world.