Darryl Pankratz

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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Bond: Training Bond

New employees are often subject to probationary periods during which their suitability for employment is evaluated. Probationary periods are defined periods of time (which are often for three months but can be longer) that are established at the beginning of employment. One purpose of probationary periods is to give the employer a reasonable opportunity to determine if the employee is qualified and suitable for the job. They will often provide an employer the ability to terminate the employee without cause and without the normal obligations of providing notice or severance. If a probationary period is longer than three months, the normal notice and severance provisions of provincial employment standards legislation or the Canada Labour Code apply, depending on which legislation …

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Canadian Government Amends Regulations for Offshore Flights

The Honourable Lisa Raitt, Federal Minister of Transport, announced on April 22, 2015 that amendments to the Canadian Aviation Regulations (“CARs”) regarding offshore helicopter operations in Canada would come into force effective on July 21, 2015.  The objectives of these amendments are to reduce the risks associated with offshore operations flights and to bring Canada’s standards in line with the International Civil Aviation Organization (ICAO) standards and industry best practices.  The genesis of these changes arises in response to an earlier loss.

On March 12, 2009, a Sikorsky S-92A helicopter destined for the Hibernia Oilfield crashed into the Atlantic Ocean off the coast of N.L. with 16 passengers and 2 crew members on board.  The lone surviving passenger suffered significant injuries while all other …

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Status Quo for Limits of Liability under Montreal Convention

The Montreal Convention of 1999 (“MC99”) establishes liability limits for commercial aircraft operators for damages in relation to the international carriage of passengers, baggage and cargo.  Article 17 provides that the carrier is liable for the death or bodily injury of a passenger involving an accident which occurs on board the aircraft or in the course of embarking or disembarking.  MC99 also provides that the operator may be liable for damage or loss to baggage or cargo and for delay.  Articles 21 and 22 of MC99 set out limits to the amount of this liability.  These limits are expressed in Special Drawing Rights (“SDRs”), an international “currency” established by the International Monetary Fund.  The value of a SDR is calculated …

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UK Accident Investigation Reports Admissible in Legal Proceedings — What about Canada?

An influential decision arising out of the English Court of Appeal has affirmed an earlier ruling in Rogers v. Hoyle (click here),which held that reports produced by the Air Accidents Investigation Branch (“AAIB”), of the UK’s Department for Transport, are admissible as evidence in civil proceedings.

The case involved a wrongful death claim arising out of an aircraft accident. The claimants alleged negligence on the part of the defendant pilot and sought to rely on the AAIB report for both the factual and expert evidence it contained. In response, the defendant sought a declaration that the report was inadmissible.

The main question for consideration in the case was whether the AAIB report had to be excluded as a

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What is “Air Service”?

The Canadian Transportation Agency recently published a decision which sets out how it determines what constitutes an “air service” and what criteria will be applied in making that determination. The Agency is mandated to administer, interpret and enforce the Canada Transportation Act (“CTA”). The CTA provides for various licensing requirements in respect of air transportation and those requirements apply to any person who operates or intends to operate an “air service” in Canada. Therefore, the answer to the question of whether one is operating an air service may have significant consequences on the obligations to comply with regulatory requirements. 

“Air Service” is defined in the CTA as “a service provided by means of an aircraft, that is publicly available for …

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No Aviation Insurance Coverage for Pilot Without Valid License

In a past post, we reported on the case of Mr. Nicholas Gudzinski, who was killed on August 19, 2006, when he lost control of his aircraft after making a slow-speed pass at a low altitude.  Gudzinski had earned his Canadian private pilot’s license in 1993, but his most recent medical certificate had expired on June 1, 2005.

Gudzinski’s estate submitted an insurance claim for damage to the aircraft as a result of the crash.  The aviation insurer denied the claim, on the basis that the policy only provided coverage to an “approved pilot … who has the required license.”

The estate launched a lawsuit and the matter came before a Chambers Master of the Alberta Court of Queen’s …

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Valid Medical Certificate Required for Coverage

In a recent ruling, the Alberta Court of the Queen’s Bench corrected an earlier decision which found that a pilot’s estate was entitled to insurance coverage for loss of an aircraft, despite the fact that the pilot’s medical certificate had expired.

Nicholas Gudzinski took out an insurance policy (the “policy”) on his Cessna 177B Cardinal. The policy listed Gudzinski as an approved pilot and provided coverage:

“only if your aircraft is flown by an approved pilot … who has the required license or endorsements to fly your aircraft.”

On August 19, 2006, Mr. Gudzinski was killed when he lost control of the aircraft after making a slow-speed pass at a low altitude.  Gudzinski was issued a Canadian private pilot’s …

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