Patrick Saul

Montreal Convention Delay Claims Must be Reasonable

Gavel - trans

A Halifax passenger booked with Air Canada to fly from Halifax to Beirut, via Montreal.  The flight segment from Montreal to Paris was cancelled due to a maintenance issue.  Air Canada scheduled a replacement flight which left Montreal later than the originally scheduled departure time.  To compensate for the delay, Air Canada offered the passenger an upgrade on the Montreal/Paris segment of the rescheduled flight as well as $1,300 in flight vouchers.

The passenger rejected Air Canada’s offers and elected instead to book flights with another carrier which arrived in Lebanon sooner than the rescheduled Air Canada flight.  In order to secure those flights, the passenger had to travel business class.  The passenger sued Air Canada for the full cost …

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Foreign Carriers Must Comply With Canadian Privacy Laws

Privacy highlighted

A Canadian resident sought information from KLM about its policies and practices relating to the management of his personal information as a passenger.

The airline was slow to respond and ultimately provided a minimal response.

The passenger complained to the Office of the Privacy Commissioner of Canada that KLM was in breach of the Personal Information Protection and Electronic Documents Act (“PIPEDA”).

Notwithstanding KLM’s foreign incorporation, the Commission took jurisdiction over the complaint on the grounds that there was a real and substantial connection between the complaint, the parties and Canada.  In particular, the complainant was a Canadian resident; KLM offers services within Canada; and the complainant originally booked his flight from Toronto.

In its defence, KLM asserted that its …

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Airline Customer Service Issue Creates Liability Under the Montreal Convention

man wrapped in a warm blanket shivering from the cold

Mr. Gontcharov travelled by air from the Dominican Republic to his home in Toronto.  During the flight, he complained to the flight attendant that he was cold and requested that she either turn the heat up or provide him with a blanket.  After a second request, the flight attendant told him the blanket would cost ten dollars.  This discussion escalated into a confrontation so that when the aircraft landed, Mr. Gontcharov was escorted off the aircraft by two local police officers.

Mr. Gontcharov sued the airline alleging that he had come down with severe bronchitis following the flight and had suffered psychological injuries as a result of his “wrongful arrest”.

Claims arising in the course of international carriage, are governed …

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The Runway End Safety Area Debate


A runway end safety area (RESA) is a clear graded area at the end of a runway intended to reduce the risk of damage to an aircraft which overruns the runway.  ICAO Annex 14, Aerodrome Design and Operations, prescribes a standard international RESA of 90 metres for runways coded 3 or 4 from the end of the runway strip and recommends a RESA of 240 metres where practicable.

When the standard RESA was introduced in Annex 14, Canada determined that it was impractical to comply with this standard and filed with ICAO a “Difference” stating:

“Canada does not provide runway end safety areas …”

That position reflected Transport Canada’s concern that the geography of many Canadian airports would not …

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“Death Review” Panel?


In November 2011, the British Columbia coroner’s office announced the appointment of a “death review” panel to inquire into float plane safety in the province.

The purpose of this exercise is unclear.

According to the coroner’s office, the panel was created in response to four “commercial float plane crashes between August 2008 and May 2010”.  From the perspective of November 2011, this is hardly a rash of accidents.  More significantly, the Canadian Transportation Safety Board has already undertaken and completed its investigations into these accidents and delivered its final reports.  These reports disclose little or no commonality among the four accidents other than the fact that they occurred during flying operations on the west coast of British Columbia.

Two of

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“Reasonable Measures” to Avoid Flight Delay

Aviation - photo

In a recent decision, the Quebec Small Claims Court considered Alitalia’s actions during a flight delay in Italy.  The Plaintiffs had sued Alitalia because the delay caused them to miss their connecting flight to Montreal, Quebec.

The Montreal Convention governs air carriers’ liability during international carriage.  Article 19 of the Convention states that an air carrier will not be liable for damages for delay if it can prove that it took all reasonable measures to avoid the delay or that it was impossible for it to take such measures.

The determination of what constitutes “reasonable measures” has resulted in inconsistent decisions in different jurisdictions.

Alitalia produced evidence that its flight was delayed by a mechanical problem, which was identified …

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Don’t Lien on YVR

Caution sign resized

In a February 2011 decision (link), the British Columbia Court of Appeal confirmed that the principal sections of the provincial Builders Lien Act were inapplicable to the Vancouver International Airport Authority, which leases the federal lands upon which the Airport is built.

Two contractors who had supplied materials and labour for improvements to the airport premises filed builders liens against the Airport’s leasehold interest in the Airport lands.  The Builders Lien Act creates liens that can be enforced by sale of land if the debt to the filing party is not paid.

The Airport Authority argued that the principal sections of the Builders Lien Act encroached on the federal government’s jurisdiction over aeronautics and a vital part of the …

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Human Rights Tribunal Finds Discrimination Against Pilot


In a recent decision, the Quebec Human Rights Tribunal ruled that the Bombardier Aerospace Training Centre (“BATC”) had discriminated against a pilot by denying him services on the basis of his racial origins.  Bombardier (a Canadian aircraft manufacturer) operates BATC, which is certified to offer pilots ground school and simulator training for Canadian, U.S. and European ratings on various types of Bombardier aircraft.

Mr. Javed Latif (the pilot) is a dual citizen of Canada and Pakistan.  He has 25 years of experience flying business jets, including the Bombardier Challenger 601 and 604 aircraft on which he received his initial type rating from BATC.  Mr. Latif obtained his U.S. pilot’s license in 1991 and his Canadian pilot’s license in 2003.…

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Federal Aeronautics Powers Reaffirmed

Supreme Court of Canada

“Air Transportation is an indispensable part of modern life. Yet as our dependence on aircraft has grown, the demands of aviation have increasingly collided with other interests.”

These words with which Chief Justice McLachlin began her judgment in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 summarized the issue before her.

Bernard Laferriere and Sylvie Gervais owned a wooded lot near the City of Shawinigan.  In 1998, they cleared part of their lot and built a grass airstrip.  But the new aerodrome was situated in a designated agricultural region and the Quebec Agricultural Lands Protection Commission ordered the aerodrome to be closed.   These facts set up the classic Canadian constitutional confrontation between the power of the …

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Cockpit Voice Recording Decision Confirmed

Aviation - photo


In a previous post, we reported the decision of Justice Strathy of the Ontario Superior Court requiring production by the TSB of the cockpit voice recording taken from the Air France A340 which crashed at Toronto Airport on August 2, 2005.

That decision was appealed by the TSB to the Court of Appeal for Ontario which recently dismissed the appeal and confirmed the decision of Justice Strathy.  Click here for the Court’s ruling.

In its appeal, the TSB argued that the motion judge had failed to apply the proper legal test set out in Section 28(6) of the Canadian Transportation Accident Investigation and Safety Board Act (the “Act”) for determining whether production of the CVR should be ordered.  …

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