The aftermath of Germanwings

On March 24, 2015, the passengers and crew of Germanwings Flight No. 9525 (from Barcelona to Dusseldorf) were the victims of a tragic aviation incident. Shortly after take-off, the pilot left the cockpit. The co-pilot (Mr. Lubitz) locked the cockpit door and initiated a steep descent into the French Alps. Despite attempts by the crew to gain entry to the cockpit and communicate with Mr. Lubitz, the plane crashed, killing everybody on board. The incident sparked international concern, and the incident resulted in the implementation of various safety measures across the globe.

The French Aviation Investigation Authority (the BEA) investigated the accident. The BEA report revealed that Mr. Lubitz suffered from a prior history of depression and psychological disorders. Shortly …

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PTSD is not a “bodily injury” down under

In November, 2009, an aircraft operated by Pel-Air Aviation Pty Ltd.  (“Pel-Air”) flew on a charter flight from Samoa to evacuate a patient and her husband to Melbourne.  Six people were on board the aircraft, including Ms. Karen Casey, a nurse employed by Care Flight (NSW), and Dr. David Helm.  The aircraft was scheduled to refuel at Norfolk Island but poor weather forced the pilot to ditch the aircraft in the sea.  Everyone on board the aircraft survived, but Ms. Casey and Dr. Helm were both seriously injured and commenced an action against Pel-Air in the Supreme Court of New South Wales.

As the case involved an international flight, the Montreal Convention applied to their claims for damages.  At trial, …

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Northern Exposure

On July 10, 2012, two Yukon Government employees were being transported by helicopter during a project involving the collection of grizzly bear hair samples. Regrettably, the employees were injured during an attempted landing. As a result of the accident, they commenced a lawsuit against Horizon Helicopters, the owner and operator of the helicopter.

In many jurisdictions across Canada, Workers’ Compensation legislation provides a “statutory bar”, which prevents one worker from pursuing a lawsuit against another worker or against an employer when he or she is injured while in the course and scope of employment (i.e. while working). Instead, the worker must apply for WCB benefits. Under Yukon legislation, a worker may choose whether to apply for WCB benefits or pursue …

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Flight Deck Security

On March 24, 2015, a Germanwings Airbus A320 crashed in the French Alps, killing all 150 souls on board. Following this tragedy, the French accident investigation authority (BEA) commenced an investigation into the circumstances surrounding the loss. On March 13, 2016 the BEA released their final report, concluding that the First Officer, while alone on the flight deck, deliberately caused the crash by modifying the autopilot settings and locking the flight deck door to prevent the Captain from returning. He was unresponsive to all requests for access by the Captain and all communication attempts from air traffic control. This tragedy identified some risks associated with having only one crew member on a secure flight deck.

Pursuant to the Canadian Aviation

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Canada’s New Low-Cost Airlines: Poised to Take Flight?

There has been much interest lately in the development of two new players in the Canadian aviation scene. Canada Jetlines Ltd. and NewLeaf Travel Company are hoping to capture a piece of the commercial air travel pie by competing for passengers looking for low-budget, no-frills air travel. NewLeaf has already begun seat sales, with service to many smaller Canadian centres as well as the Greater Vancouver and Greater Toronto areas. However, no new airline enterprise can get off the ground without a bit of turbulence. Both companies have faced early challenges while navigating Canada’s regulatory landscape.

NewLeaf’s first flights touched down on July 25, 2016. This came after several months of delay, stemming from a Canadian Transportation Agency (“CTA”) review …

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Proposed Canadian Regulations: PFDs Must Be Worn on Seaplanes

Canada has the highest volume of seaplane operations in the world. The Transportation Safety Board of Canada (“TSB”) estimates that in the Vancouver Harbour alone, about 300,000 passengers travel on about 33,000 seaplane flights each year (see link). The Canadian Aviation Regulations (“CARs”) currently require that a personal floatation device (“PFD”) for each passenger be carried onboard the aircraft. However, occupants are not required to wear the PFD during the flight. Additionally, commercial seaplane pilots are not required to have underwater egress training, which teaches potentially life-saving strategies for exiting a submerged aircraft.  

In November 2009, the pilot of a commercial seaplane initiated a left hand turn shortly after take-off from Saturna Island, British Columbia. During the turn, …

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Cutting it close – Passengers found negligent for booking close connections

There are many ways in which passengers book air travel. Some use travel agents or tour companies, while others choose to book their travel online. Travel agents ought to be well accustomed to leaving adequate time between flights. When booking online, travellers are generally warned about tight connection times. In some cases, however, the question of timing could be due to time-sensitive commitments at the destination. For example, many people schedule short stop-overs for business meetings, while others fly to cities to connect onto cruises or other holiday packages. How much extra time should a person give themselves in these circumstances? The Quebec Small Claims Court recently dealt with this very issue.

In Desjardins c. Air Canada inc., 2016 QCCQ

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Passenger claims in international air travel: How far does the Montreal Convention reach?

In the 2014 decision of Thibodeau v. Air Canada, the Supreme Court of Canada confirmed that the Montreal Convention, an international treaty incorporated into Canadian law, exclusively governs passenger claims for damages in relation to international air travel that fall within its scope. Consequently, if an action in respect of such a claim is not specifically provided for in the Convention, it is not available at all, regardless of local law.  This statement of the law is consistent with the interpretation of courts in most other signatory countries.

The Montreal Convention provides that personal injury claims may only be brought if the passenger has suffered “bodily injury” as a result of an “accident” that occurs during an international flight …

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Canada’s Federal Court: Public Safety Trumps Aviation Commercial Interests

Earlier in 2015, the Federal Court heard two days of submissions from Canadian company Rotor Maxx Support Ltd. and the Minister of Transport (click here for link).  The issue: whether the Minister of Transport should be subject to a confidentiality order and injunction preventing the Minister from disclosing that Rotor Maxx had improperly certified helicopter engine and drive train parts.

At the time of the hearing, a temporary confidentiality order was already in place, but Rotor Maxx sought a further, prospective injunction.  To succeed in its injunction application, Rotor Maxx had to demonstrate to the court that there would be irreparable harm to its business that outweighed the Canadian public’s interest in the security of the “flying public”.  In the …

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The Battle Over Passenger/Flight Attendant Ratios: Transport Canada Decisions Ruled Unreasonable

Until August 1, 2015, the Canadian Aviation Regulations (the “CARS”) required at least one flight attendant for every 40 passengers on board a commercial aircraft.  In 2013, Transport Canada (the regulator of aircraft operators) granted exemptions to several carriers, including Sunwing Airlines, allowing them to operate with a ratio of one flight attendant for every 50 passenger seats.  European and U.S. carriers were already permitted to operate under a 1:50 ratio.

The Canadian Union of Public Employees (CUPE) represents flight attendants employed by several Canadian airlines.  Over the past few years, CUPE has voiced strong opposition to the exemptions granted by Transport Canada.  As mentioned above, the CARS were amended as of August 1, 2015, and now permit air operators …

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