Mr Carlos P Martins

Carlos P Martins



Contents of cockpit voice recorder released in class action
Canada | 09 June 2021

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.

Court certifies two passenger class actions against WestJet
Canada | 14 April 2021

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.

Air carrier avoids liability for refusal to transport disruptive passenger
Canada | 24 February 2021

The British Columbia Civil Resolution Tribunal recently ruled on a dispute involving an air carrier which had refused to transport a disruptive passenger. This decision lays out the type of evidence which a carrier should be prepared to present to avoid liability and serves as a reminder to passengers that they have an obligation to be respectful while travelling.

Filing insurance certificates with Canadian Transportation Agency
Canada | 23 December 2020

Air carriers offering scheduled international services to or from Canada must, by virtue of the Canada Transportation Act, file proof of insurance each year as a condition of maintaining their licence. Historically, the Canadian Transportation Agency has, in some instances, allowed for leniency in the form of granting extra time for air carriers to file the proper certificates. However, a review of the agency's recent decisions demonstrates that such leniency is no longer being extended.

Should expert reports on Montreal Convention be allowed in challenge to APPRs?
Canada | 02 December 2020

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.

Air passenger rights group challenges CTA statements on COVID-19 vouchers
Canada | 18 November 2020

In March 2020 the Canadian Transportation Agency (CTA) issued public statements suggesting that it could be reasonable for airlines to provide travel vouchers for flights cancelled as a result of the COVID-19 pandemic, rather than providing refunds. An advocacy group commenced an application for judicial review of the statements, asserting that they violated the CTA's Code of Conduct and misled passengers as to their rights. The Federal Court of Appeal recently dismissed the motion.

Transportation Appeal Tribunal of Canada unable to consider costs after withdrawal
Canada | 05 August 2020

The Federal Court of Canada recently upheld a Transportation Appeal Tribunal of Canada (TATC) decision which had found that the TATC did not have jurisdiction to accept submissions regarding the legal costs of an air carrier's application for a review of an administrative monetary penalty issued by the Canadian Transportation Agency. The court held that as the penalty had been unilaterally withdrawn by the agency prior to the TATC hearing, the TATC did not have jurisdiction to deal with the question of costs.

Passenger's fall due to unsteadiness not an accident under Montreal Convention
Canada | 22 July 2020

The British Columbia Civil Resolution Tribunal (BCCRT) recently ruled in favour of an air carrier, dismissing a passenger's claim for compensation arising from an alleged fall sustained while exiting the aircraft. In its decision, the BCCRT considered and opined on what constitutes an 'accident' under Article 17 of the Montreal Convention. This decision also provides helpful guidance on the evidentiary requirements in personal injury cases.

Proposed class action claims refunds for flights cancelled due to COVID-19
Canada | 29 April 2020

Air Canada, WestJet, Air Transat, Sunwing, and Swoop are facing a proposed class action for offering vouchers and credits in lieu of refunds for flights that were cancelled due to the COVID-19 pandemic. It remains to be seen whether a class action with such a wide scope – as opposed to a government bailout or coordinated response from regulators – will be considered the most efficient way to deal with the claims of those whose flights have been cancelled due to COVID-19.

Government restricts travel to Canada by foreign nationals
Canada | 25 March 2020

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.

Accessible Transportation for Persons with Disabilities Regulations – an overview
Canada | 11 March 2020

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.

Court rules EU Flight Delay Compensation Regulation claim cannot be enforced as breach of contract
Canada | 11 September 2019

A recent decision from the Ontario Small Claims Court marks the first time that a Canadian court has considered whether EU air passenger rights legislation can be enforced outside Europe. This decision will be of interest to carriers operating flights between Canada and Europe, as it holds that a tariff that does not expressly incorporate the EU Flight Delay Compensation Regulation will not expose a carrier to breach of contract claims brought in Canada for declining to pay compensation under the regulation.

Canada's Air Passenger Protection Regulations coming into force
Canada | 19 June 2019

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.

Proposed class action takes aim at airport fees paid by airline employees
Canada | 05 June 2019

Three dozen Canadian airports may be on the hook for fees charged to airline employees flying on employee travel passes. A proposed class action has been commenced in the Federal Court of Canada claiming compensation for airline employees who paid certain fees which the representative plaintiff claims should not have been paid pursuant to agreements signed by the defendant airports.

Quebec court rules 'one passenger one ticket' policy applies in class action
Canada | 15 May 2019

The Quebec Superior Court of Justice recently ruled against Air Canada in a class action brought by passengers with disabilities, their attendants and obese passengers who had been required to pay for additional seats on flights. This decision confirms that carriers that do not abide by a 'one passenger one ticket' policy may be liable for discriminating against passengers with disabilities and obese passengers who require more than one seat.

Superior Court rules on entitlement to lost luggage compensation
Canada | 03 April 2019

The Ontario Superior Court of Justice recently ruled that in order to claim damages for lost luggage under the Montreal Convention, a passenger need not have personally checked the luggage. This decision partially affirms a decision of the province's Small Claims Court, in which the deputy judge held that, despite only one passenger in a group having checked in all of the bags, each passenger had been entitled to claim damages for lost luggage.

Class action regarding flight passes denied certification
Canada | 06 March 2019

The Quebec Supreme Court recently declined to certify a class action based on the application of certain sections of the Consumer Protection Act or its Alberta equivalent to flight passes sold by Air Canada. This decision is notable for carriers selling flight passes, as it clarifies the types of transaction which are subject to consumer protection laws. Carriers which sell gift cards representing a fixed monetary value should be aware of their obligations under consumer protection laws.

Federal government proposes air passenger protection regulations
Canada | 23 January 2019

The Canadian Transportation Agency is seeking a public review and comment on proposed air passenger protection regulations. Among other obligations, the proposed regulations require that carriers communicate clearly with passengers regarding their rights and recourses, entitle passengers to be rebooked in the case of delay or cancellation and – in certain circumstances – provide passengers with accommodation.

Federal Court finds that Air Canada violated Official Languages Act
Canada | 12 December 2018

In a recent case that dealt with Air Canada's duty to serve passengers in both of Canada's official languages (English and French), the Federal Court held that the airline had violated a passenger's right to be served in French. The court found that Air Canada had failed to serve a passenger in French during an incident where the passenger had been involuntarily removed from a Canada-bound flight from Fort Lauderdale and when the airline later sent him a copy of its tariff in English in response to the incident.

Court finds in favour of Air Canada in denied boarding compensation case
Canada | 14 November 2018

The Supreme Court of Nova Scotia recently ruled in favour of Air Canada, dismissing a passenger's appeal of the province's small claims court's interpretation of the air carrier's tariff provision which pertained to denied boarding compensation. Despite humble beginnings in the small claims court, the case provides some insight into how the Canadian courts may interpret air carrier tariffs and the evidence that claimants are expected to adduce to succeed in securing compensation in overbooking cases.

Federal Court quashes civil aviation safety alert
Canada | 05 September 2018

In early 2018 the Federal Court reviewed a 2015 Transport Canada decision to issue a civil aviation safety alert (CASA) against Rotor Maxx Support Ltd. CASAs are non-mandatory notifications issued by the regulator which contain important safety information and recommended actions for appropriate stakeholders. The court had previously declined to grant an injunction preventing the issuance of the CASA.

Lack of night vision goggles insufficient for Labour Code conviction
Canada | 25 April 2018

In a recent Ontario Court of Justice case, Ornge air ambulance services were charged under the Labour Code following an air ambulance crash that killed two pilots and two paramedics on a night flight. The Crown argued that the accident would not have occurred had the pilots been able to see the ground using night vision goggles, and that it had been Ornge's duty to ensure their safety by providing this technology. However, Ornge held that it had complied with all of the legal and regulatory requirements.

Airline ordered to pay C$295,000 penalty for tarmac delay
Canada | 21 February 2018

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.

Arbitrator rules that pilot training bonds require express authorisation to be enforceable
Canada | 03 January 2018

In a recent federal labour arbitration, the Air Line Pilots Association brought a grievance on behalf of Jonathon Sipko against Air Georgian Limited for making unauthorised deductions from Sipko's wages when he left Air Georgian's employment less than one year after undergoing captain upgrade training. This case serves as a caution for airlines to ensure that they have express authorisations with employees (commonly in the form of written and signed agreements).

Changes to flight attendant manuals must have reasonable basis
Canada | 11 October 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
Canada | 05 July 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
Canada | 29 March 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
Canada | 08 March 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
Canada | 14 December 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
Canada | 09 November 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
Canada | 14 September 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
Canada | 07 September 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
Canada | 06 July 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
Canada | 08 June 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
Canada | 30 March 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.

OnDemand: Rise of the drones
Canada | 23 December 2015

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.

No duty of care to operator for improperly suspended air operator certificate
Canada | 21 October 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
Canada | 12 August 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
Canada | 22 July 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
Canada | 08 July 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
Canada | 27 May 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
Canada | 20 May 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
Canada | 18 March 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
Canada | 05 November 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
Canada | 08 October 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.

Passenger's failure to mitigate damages affects award
Canada | 01 October 2014

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.

Extra disclosure ordered in security screening case
Canada | 24 September 2014

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.

New argument on erroneously filed fares finds favour
Canada | 10 September 2014

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.

Cathay Pacific trademark application to be reheard
Canada | 03 September 2014

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.

United Airlines' injunction application not anti-SLAPP
Canada | 27 August 2014

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.

Force majeure trumps delay claim in Quebec aviation case
Canada | 02 July 2014

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.

Court dismisses denied boarding claim
Canada | 18 June 2014

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.

Appealing CTA decisions
Canada | 21 May 2014

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.

CTA implements Interline Baggage Rules for Canada
Canada | 07 May 2014

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.

Court rules on sovereign immunity
Canada | 19 March 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.

Court to consider allegations of negligence against Transport Canada
Canada | 22 January 2014

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.

CTA defines 'publicly available air service'
Canada | 18 December 2013

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.

Anti-SLAPP: round two
Canada | 11 December 2013

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.

CTA defines 'effective transfer assistance' for disabled persons
Canada | 04 December 2013

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.

Air New Zealand's Canadian trademark narrowed
Canada | 13 November 2013

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.

CTA issues new wet leasing policy
Canada | 30 October 2013

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.

CTA considers Air Canada's 'intertwined' compensation proposal
Canada | 02 October 2013

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.

Lukács challenges cabin photography prohibition
Canada | 25 September 2013

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.

TATC definition of 'publicly available' vexes court
Canada | 18 September 2013

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.

Lukács strikes again: CTA rules on overselling
Canada | 14 August 2013

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.

Class action for collection of US transportation taxes partially stayed
Canada | 07 August 2013

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.

Ontario Superior Court rules on Bombardier v AS Estonian Air
Canada | 03 July 2013

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.

United Airlines faces SLAPP allegations
Canada | 26 June 2013

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.

Montreal Convention exclusivity reinforced in class action
Canada | 19 June 2013

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.

Appellate court gives go-ahead to YQ surcharges class action
Canada | 05 June 2013

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.

Federal Court backs TATC in pilots' appeal
Canada | 01 May 2013

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".

Court finds for shipper in air waybill dispute
Canada | 17 April 2013

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.

Litigation privilege denied in aviation insurance case
Canada | 06 March 2013

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.

Porter Airlines' international tariff challenged
Canada | 20 February 2013

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.

Challenge to government implementation of safety management systems fails
Canada | 30 January 2013

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.

Internal legal seminar is solicitor-client privileged
Canada | 23 January 2013

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.

Canadian Transportation Agency upholds unruly passenger ban
Canada | 16 January 2013

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.

Canadian Transportation Agency decides on validity of medical clearance
Canada | 19 December 2012

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.

Court dismisses product liability claim in balloon accident
Canada | 28 November 2012

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.

Mexicana BSP/CASS settlement process approved
Canada | 21 November 2012

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.

Federal Court of Appeal rules on mandatory retirement of pilots
Canada | 03 October 2012

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.

Certificate type holder added to aviation claim
Canada | 26 September 2012

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.

Appeal court rules on payment of insolvent airline's airport fees
Canada | 18 July 2012

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.

End of the line: Gábor Lukács strikes again
Canada | 04 July 2012

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.

Iberia warned about failure to post tariffs online
Canada | 27 June 2012

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.

Interpretation of 'common carrier' in insurance policy
Canada | 18 April 2012

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.

Competition trumps Canadian Transportation Agency attempt to regulate fares
Canada | 11 April 2012

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.

Aviation insurance coverage requires valid medical certificate
Canada | 14 March 2012

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.

Remedial order in Thibodeau stayed pending appeal
Canada | 15 February 2012

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).

End of the line for air cargo surcharges class action
Canada | 01 February 2012

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.

IATA prevails once again on PaxIS appeal
Canada | 18 January 2012

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.

Registered owner retains title to aircraft
Canada | 21 December 2011

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.

Particulars in aviation product liability cases
Canada | 23 November 2011

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.

Federal jurisdiction in aeronautical matters
Canada | 05 October 2011

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.

Bilateral Aviation Safety Agreement enters into force
Canada | 14 September 2011

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.

Canada-Mexico bilateral agreement signed
Canada | 07 September 2011

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.

Newfoundland court dismisses appeal in Sikorsky case
Canada | 31 August 2011

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.

Canadian Transportation Agency releases annual report
Canada | 24 August 2011

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.

Official Languages Act trumps Montreal Convention
Canada | 17 August 2011

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.

Pilot training bond contracts
Canada | 27 July 2011

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.

Tech, Data, Telecoms & Media

Online newspaper articles and libel do not toll notice and limitation periods
Canada | 27 July 2017

An eagerly anticipated media law decision from the Ontario Court of Appeal confirms what may seem to be an obvious legal proposition: the publication of a newspaper article online is treated the same as the print version for the purposes of notice and limitation periods in a civil action – in other words, time periods governing libel actions do not start afresh each day that an online article is online.

Failure to include retraction or apology in defamation settlement offer has costs consequences
Canada | 16 March 2017

A recent decision of the Court of Queen's Bench in Alberta highlights the costs consequences of litigating civil actions in Canada in the context of a defamation action involving a self-represented plaintiff who was forced to proceed to trial in order to obtain public acknowledgement that the article in question was defamatory. The plaintiff ultimately obtained a damages award of C$200,000 and recovery of trial costs in the amount of C$250,000.

Anti-SLAPP law: recent decisions
Canada | 19 January 2017

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.

Court finds businessman is not a 'libel tourist'
Canada | 01 December 2016

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.

Federal Court of Canada decision encourages creation of historical fiction
Canada | 22 September 2016

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.

Stringent anti-spam legislation and regulations on the horizon
Canada | 25 March 2014

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.