Michael Dery

Here We Go Again: Mental Injury and the Montreal Convention

In previous posts (click here and here), we discussed the trial and appeal decisions in Casey v. Pel-Air Aviation Pty (Supreme Court of New South Wales, Australia). The issue to be determined was whether Ms. Casey could recover damages for Post-Traumatic Stress Disorder (PTSD). Because Ms. Casey had been travelling internationally at the time of the subject aircraft accident, her claim was exclusively governed by the Montreal Convention, an international treaty. The Montreal Convention only allows for the recovery of damages for “bodily injury” (i.e. physical injury) and not purely mental injury.

Contrary to prior jurisprudence, the trial court in Casey accepted that Ms. Casey’s PTSD could be a “bodily injury” in that it was an injury to her …

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British Columbia Court of Appeal Upholds Workers’ Compensation Appeal Tribunal decision regarding passengers’ rights to sue for damages resulting from an aircraft accident

On October 27, 2011, an aircraft crash-landed near the Vancouver International Airport.  Six of the surviving passengers commenced a lawsuit against the aircraft operator seeking to recover damages arising from their injuries.  The passengers were flying to Kelowna to attend an annual retreat organized by an organization named “The Executive Committee” (“TEC”).  The TEC is a member-based community of over 900 chief executives, entrepreneurs, and business owners from across Canada.  The passengers were founders and CEOs of various companies.  TEC provides peer advice and support, through a “safe refuge” for executives to discuss work and personal issues.  Each TEC member is required to attend meetings and pay annual dues for membership.  The passengers’ dues were all paid by their companies.  …

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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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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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Supreme Court of New South Wales rules that PTSD can be a “bodily injury” under the Montreal Convention

In November 2009, an aircraft operated by Pel-Air Aviation Pty Ltd (“Pel-Air”) flew from Sydney, Australia to Samoa to transport a seriously ill patient and her husband to Melbourne, Australia.  The plane was scheduled to land at Norfolk Island (on its way to Melbourne) to refuel.  It crashed during that leg of the flight and the doctor and nurse who were onboard the aircraft (Ms. Casey and Dr. Helm) were both seriously injured.  They commenced an action against Pel-Air in the Supreme Court of South Wales.

As this case involved an international flight, Ms. Casey and Dr. Helm could only recover damages according to the provisions of the Montreal Convention, an international treaty that exclusively governs such cases.  Courts around …

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Year in Review: Thibodeau v. Air Canada – The Exclusivity of the Montreal Convention

Michel and Lynda Thibodeau (the “Thibodeaus”) launched several complaints before Canada’s Commissioner of Official Languages (the “Commissioner”) alleging that Air Canada had contravened its obligations under the Official Languages Act (“OLA”) to provide services in French. They alleged that on two trips they made in 2009, Air Canada had failed to offer services in French at check-in counters, boarding gates and aboard flights on which there was significant demand for services in French, and that it made passenger announcements only in English.

The Commissioner found that all but two of the complaints had merit. The matter then proceeded before the Federal Court of Canada, which awarded $6,000 in damages to each of the Thibodeaus, representing $1,500 per violation. The Federal …

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Overhaul of Canada’s Temporary Foreign Worker Program affects Foreign Pilots

On June 20, 2014, the Government of Canada announced sweeping changes to its Temporary Foreign Worker Program, many of which were effective immediately.  Pilots are one of very few specific occupations that were singled out in the changes.

Under the former system, employers were required to obtain authority to hire a foreign worker through a “Labour Market Opinion”.  Employers must now apply for a Labour Market Impact Assessment (LMIA), which is a more comprehensive and rigorous process.  The LMIA must include information about the number of Canadians who have applied for the available job, the number of Canadians interviewed, and an explanation of why those Canadians were not hired.  A new job matching service has been introduced in an effort …

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Transport Canada Proposes New Regulations for Offshore Flights

On March 12, 2009, a Sikorsky S-92A helicopter destined for the Hibernia Oilfield crashed in the Atlantic Ocean off the coast of Newfoundland and Labrador.  Seventeen passengers suffered fatal injuries in the crash and the lone survivor suffered serious injuries.  In response to safety recommendations from the Transportation Safety Board of Canada, regulatory amendments have been proposed by Transport Canada.  The proposed amendments are meant to reduce the risks associated with flights in support of offshore oil, gas or mineral exploration.

The proposed amendments contain the following new requirements:

(a)        no offshore operations flights are to be conducted if the sea state reported at the destination exceeds the sea state for which the helicopter is certified to conduct a ditching in

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Lasers and Aircraft Safety

A 19-year old man was charged in Calgary this week with assault causing bodily harm and two mischief-related charges under the Criminal Code.  He is being accused of pointing a type-3 laser at a Calgary police helicopter pilot three times.  For a recent article about the rising frequency of these incidents in Canada, click here.  It is alarming and perplexing that these events continue to occur.…

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Supreme Court of Canada Grants Leave in Montreal Convention/Language Rights Case

The Supreme Court of Canada announced today that it will hear an appeal of a case which considered the interaction and potential conflict between the Montreal Convention (a treaty governing international air travel) and Canadian language law rights.   

Click here to view a recent article regarding this case.  Click here to view the announcement from the Supreme Court of Canada.  Click here to view the Federal Court of Canada decision that is being appealed.…

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