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19 June 2013
On January 14 2011 Ashlyn O'Mara was a passenger on Air Canada flight AC878 from Toronto to Zurich. Onboard the aircraft were 95 passengers, six flight attendants and two crew members. The flight gave rise to a proposed class action following an incident.
The statement of claim in the proposed class action alleged that three hours after departure, the first officer advised the captain that he needed to rest, and went to sleep. Approximately 75 minutes later, the captain made a mandatory position report to Shanwick Oceanic Control. Around the same time, a US Air Force Boeing C-17 appeared on the Air Canada collision avoidance system. The captain immediately alerted the first officer to this development.
The statement of claim further alleged that in the next minute or so, the captain adjusted the map scale on the aircraft's navigational system and attempted to locate the oncoming C-17 visually through the windscreen. The claim also alleged that the first officer mistook the planet Venus for the C-17, despite the captain's advice that the C-17 was at the 12 o'clock position, 1,000 feet below the altitude of the Air Canada aircraft.
The pleadings further alleged that the first officer continued to interpret the C-17's position erroneously as being above and descending towards the Air Canada aircraft. As a result, the first officer was alleged to have aggressively pushed forward on the control column, causing the aircraft to enter into a 46-second steep dive which required the captain to execute an emergency manoeuvre to bring the aircraft back to straight and level flight.
The dive caused many passengers and objects in the cabin to be violently tossed about for the duration of the dive. The claim also alleged that for the remaining three hours of the flight, many of the passengers were terrified and feared for their lives.
Following the incident, an Air Canada spokesman publicly stated that the incident was the result of unexpected turbulence. The claim alleged that no further explanation was given by Air Canada, and that many passengers settled claims with Air Canada on the basis of the allegedly false information provided by the Air Canada spokesperson.
A class action was commenced claiming that the incident was an 'accident' within the meaning of the Warsaw and Montreal Conventions. The class members sought to recover damages for "personal, physical and psychological injuries".
The class members also claimed for damages in negligence, as well as "punitive and/or aggravated and/or exemplary damages" for, among other things, misleading the passengers about the true cause of the accident.
The class members also sought a declaration setting aside any signed releases on the basis that they were void ab initio because they were signed under false pretences.
On receipt of the claim and before filing a defence, Air Canada brought a motion to strike all claims for punitive, aggravated and exemplary damages, as well as to strike all claims for pure psychological injury (arguing that none of these were recoverable under the conventions).
The plaintiffs' first argument was that aggravated damages are a form of compensatory damages and, as such, are permitted under the conventions. As to the claims for punitive and exemplary damages, the plaintiffs' position was that the damages sought were for the alleged "cover-up" that occurred after the flight was concluded – and therefore were not excluded by the conventions.
After some examination of well-settled jurisprudence, the Ontario Superior Court of Justice confirmed that on a motion to strike on the grounds that the claim discloses no cause of action, all allegations in the claim must be taken as capable of proof. The claim will be stricken only if it is "plain and obvious" that it is doomed to failure. No evidence may be adduced on a motion of this sort.
In making its determination on the motion, the court went through the usual analysis relating to enforceability of the conventions in Canada, recognising the Canadian cases where the conventions were applied. It held that "it is important that there be consistency in interpretation from one country to another, and, thus there must be a very sound reason to depart from the precedents established around the world".
The court then cited numerous international cases relating to the applicability of Article 17 and concluded that "it is plain and obvious that Ms. O'Mara's claim under the Conventions for pure psychological injury is legally untenable".
The court ruled that all references to psychological and emotional injuries be deleted from the statement of claim so that class members would be under no misapprehension that there could be compensation for purely psychological injuries.
The matter then turned to the issue of whether aggravated damages were recoverable under the conventions.
In considering the definition of 'aggravated damages', the court made reference to the Supreme Court of Canada's decision in Norberg v Wynrib (2 SCR 226), where Justice LaForest held:
"Aggravated damages may be awarded if the battery has occurred in humiliating or undignified circumstances. These damages are not awarded in addition to general damages. Rather, general damages are assessed 'taking into account any aggravating features of the case and to that extent increasing the amount awarded'… These must be distinguished from punitive or exemplary damages. The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort."
Air Canada did not dispute the plaintiffs' ability to make a claim for aggravated damages; rather, it argued that such damages are an augmentation of general damages and not a separately calculable head of damages.
The court accepted Air Canada's argument in this regard, citing the Ontario Court of Appeal's decision in McIntyr v Grigg ((2006), 83 OR (3d) 161), in which it was held that "a court may separately identify what aggravates damages but, in principle, aggravated damages are not assessed separately from general damages".
Accordingly, all paragraphs relating to aggravated damages were ordered to be struck from the claim.
The court made short work of finding that claims for punitive and exemplary damages (both of which are non-compensatory in nature) were not recoverable under the 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. They argued that because this act took place after the passengers had disembarked the aircraft, the conventions no longer applied to this portion of the claim.
Air Canada had two counterarguments. The first was that if the convention applied to the action at all, then it applied to the so-called 'cover-up' because where the conventions apply, they apply exclusively and they preclude the application of domestic law, including negligence.
The second counterargument, which was similar to the first, was that the conventions are a complete code for claims arising from the international carriage by air of passengers, and if there is no claim available under the conventions, there is no common law claim either.
The court accepted both of these arguments outright. In support of its finding, the court cited the well-known cases of Sidhu v British Airways plc ( 1 All ER 193 (HL)) and El Al Israel Airlines Ltd v Tseng (525 US 155 (1999)), in which the UK House of Lords and the US Supreme Court held that the conventions were the exhaustive source of remedies for damages sustained as a result of international carriage by air.
In this regard, the court also cited the Federal Court of Appeal's decision in Air Canada v Thibodeau (2012 FCA 246) (under appeal to the Supreme Court of Canada), in which that court held that the conventions constitute:
"a complete code as concerns the aspects of international air carriage that it expressly regulates, such as the air carrier's liability for damages, regardless of the source of this liability. The purpose of the Montreal Convention, following the example of the one preceding it (the Warsaw Convention), is to provide for consistency of certain rules regarding the liability incurred during international carriage."
The court specifically found that "to determine the scope of the Conventions, Courts use a chain of causation analysis, and if the alleged wrongdoing is connected to the flight then it is covered by the Conventions".
In the concluding section of the reasons for judgment, the court noted that since the alleged cover-up could not have occurred but for the aircraft's steep dive, the conventions applied and the claim for negligence was precluded (O'Mara v Air Canada, 2013 ONSC 2931 (CanLII)).
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com).
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