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.

The changes likely arise in response to the decision by the United States to get rid of body scanners that could not be modified to alleviate privacy concerns.  The Electronic Privacy Information Center (a public internet research outfit in Washington, DC) claimed in a lawsuit that the scanners violated privacy laws and constituted a physically invasive strip search.

For a copy of the press release, click here.  For a copy of the Backgrounder on Transport Canada’s website, click here.

The pilot started the left engine, but had difficulty starting the right.  He shut down the aircraft and attempted to find the problem.  Eventually he determined that the right engine was not going to start.  He considered his options and decided to attempt a take-off with only one engine.

The pilot started his take-off roll.  After the wheels of the aircraft lost contact with the ground, the asymmetrical thrust created by the left engine caused the aircraft to yaw to the right toward a cornfield and trees adjacent to the airport. Unfortunately, the left wing hit a tree and the plane cartwheeled into the corn field.  Remarkably, the pilot escaped uninjured, though the aircraft was damaged beyond repair.

The pilot was charged under Section 7.7 of the Aeronautics Act for “operating an aircraft in such a reckless or negligent manner that endangered or likely endangered the life or property of any person”.

The pilot made an insurance claim for the loss of the aircraft, but the insurer denied coverage on the basis that the damage was caused not by an “accident” but through a conscious, reckless decision that took the risk outside of the insurance policy.  The pilot commenced an action against the insurer arguing that they improperly denied coverage.  The court considered whether the damage occurred as a result of an “accident” or as a result of “calculated, reckless behavior”.

The purpose of insurance is to cover a “fortuitous event” or “accident” and not events that are caused by one’s own intentional actions.  For example, a home owner is not entitled to collect on a fire insurance policy if they set the fire themselves.  Based on the pilot’s actions of willfully attempting a single-engine take-off, it was the insurer’s position that the damage was not the result of an “accident”.

The pilot argued that nothing in the aircraft’s “Pilot’s Operating Handbook” prohibited a single-engine take-off.  However, he admitted in cross-examination that because the right engine was not operating, he was unable to perform certain pre-take-off checks and run-up tests of the right engine.  In addition, he agreed that the emergency procedures in the Pilot’s Operating Handbook required that if an engine failure occurs during the take-off run, the pilot was required to stop the aircraft.

The court found that the evidence of recklessness was “simply overwhelming”:

• the pre-take-off check list requires that both engines be started;
• the emergency procedures are that if an engine failure occurs during the take-off run, the aircraft should be stopped on the runway;
• the pilot testified that he could have safely stopped the aircraft before lift-off; and
• the pilot had never attempted a single-engine take-off previously.

Based on the above, the court found that the denial of the insurance coverage was warranted and that “What happened … was not an accident. It was negligence.”

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 of his replacement tickets at the business class fare.

The Montreal Convention is an international convention that governs the liability of air carriers engaged in international carriage.  Article 19 of the Montreal Convention imposes liability on an air carrier for damages “occasioned by delay” but it does not define the meaning of “occasioned by delay”.  Article 22 of the Montreal Convention limits that liability to 4,694 Special Drawing Rights. 

The Plaintiff was unsuccessful in Small Claims Court and appealed to the Supreme Court of Nova Scotia, which concluded that damages occasioned by delay should be limited to “those damages that can reasonably be seen as a result of the delay” such as increased expenses for food, drink or lodging that would not otherwise have been necessary.  The court concluded that the price of business class tickets did not reasonably fall within the ambit of damages “occasioned by delay”.  (Click here for decision.)

As always, the highlight of the evening was the presentation of the Council’s annual industry awards and aviation student scholarships.  Industry award recipients included West Coast Helicopters, the Vancouver Airport Authority, Canadian Rockies International Airport (Cranbrook) and Conair Aviation.  The winner of the Council’s Lifetime Achievement Award was Lynne Denison-Foster for her many years as a leading aviation educator at BCIT.

This year’s Ernie Alexander Memorial Scholarship was awarded to Sean Samuel (pictured above) of BCIT’s Airline & Flight Operations Program.  Sean recently obtained his commercial pilot licence and informs us that his next aviation pursuit is to obtain his instructor rating.  We are thrilled to have such a deserving recipient and wish him the very best in his future endeavours.  For photos and a full list of scholarship and award winners, click here.

The aviation group at Alexander Holburn Beaudin + Lang LLP is proud to support the British Columbia Aviation Council and the Ernie Alexander Memorial Scholarship.  Ernie Alexander Q.C., was a founding member of our firm and also had a distinguished career as a pilot in the Royal Canadian Air Force.  You can read about one of his ‘missions’ here.

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 policies and practices relating to the handling of passenger data were designed to comply with the Dutch Personal Data Protection Act, based on EU Directive 95/46/EC.

The Commission concluded that KLM had not complied with the provisions of PIPEDA and that compliance with Dutch law was not sufficient to satisfy the airline’s obligations under Canadian law.

The Commissioner concluded that the complaint was well founded and recommended that KLM revise its policies and practices for handling personal information as well as its procedures published on its website.

Foreign carriers doing business in Canada should review their policies and procedures for handling passenger information to ensure that they comply with applicable Canadian legislation.

The 14th Annual Aviation Conference continues its tradition of excellence in providing an opportunity for exceptional speakers to come together with attendees from all areas of the aviation industry to examine and discuss topical issues that affect our industry.

The conference will include panel discussions on developments in the areas of aviation law, government initiatives, insurance, commerce and regulation that affect all of us in Canada and internationally.  Stay tuned for more details.

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 by the Carriage by Air Act, a Canadian Statute which incorporates the Convention for the Unification of Certain Rules of International Carriage by Air – Montreal (the “Convention”).

The air carrier brought an application to dismiss the claim as disclosing no cause of action.

Article 17(1) of the Convention imposes liability on the carrier for bodily injury of a passenger caused by an “accident” which occurred on board the aircraft or in the course of embarking or disembarking.

The Court found (click here for decision) that the refusal by airline employees to provide the Plaintiff with a blanket or warmth during the flight amounted to an “accident” within the meaning of Article 17 of the Convention.  Since the “severe” bronchitis, which the Plaintiff subsequently contracted, constitutes “a bodily injury”, the Court found that Article 17 of the Convention applied and refused to strike that part of the claim.

However, the Court did strike out the Plaintiff’s claim for psychological injuries or mental distress arising from his arrest upon arrival in Toronto.  The Court concluded that although the arrest which began on board the aircraft fell within the meaning of the term “accident” as broadly interpreted, the Plaintiff could not recover damages for psychological injuries which do not meet the accepted definition of “bodily injury” under the Convention.  On this rationale, the Court struck out the Plaintiff’s claim arising from the alleged wrongful arrest.

The inconclusive discussion of the facts in this case are due in part to the nature of the hearing, which was a pre-trial motion to dismiss Mr. Gontcharov’s lawsuit.  These hearings turn simply on an interpretation of the Statement of Claim, the document filed with the Court which initiates a lawsuit.

During the course of the trial, the pilot claimed that his right to be secure from unreasonable search under s.8 of the Canadian Charter of Rights and Freedoms had been violated when the Transport Canada Inspectors inspected the aircraft and ultimately placed a notice of detention attached to the controls of the aircraft.

The pilot claimed that any actions taken by the Transport Canada Inspectors regarding the aircraft were done without a search warrant and without the pilot’s permission.

The Transport Canada Aviation Enforcement Inspector indicated that he had been tasked with a doing a review of a parts issue with the aircraft. Based upon his understanding of the aircraft’s history and deficiencies, he formed the opinion that there were immediate safety concerns about the aircraft and as a result, attended the hangar where the aircraft was in the course of repairs.

Upon a visual inspection of the aircraft, the inspectors noted a number of deficiencies in the condition of the aircraft including: flight control surface deficiencies; bolt and attachment concerns; aircraft skin damage and concerns with the instruments and placards. All these deficiencies were observed from the outside of the aircraft, including a concern about a lack of an installed compass (by looking through the window of the cockpit).

Based on all these observations, the Transport Canada Inspector attached the detention order together with the snag sheets to the control yoke of the aircraft. The Inspector did so by reaching into the aircraft and securing the notice and snag sheets with a piece of wire. He denied that he or any other inspectors physically entered the aircraft.

In specifically considering the pilot’s Charter violation claims, the trial judge considered case law to determine if the Transport Canada Inspector’s exterior inspection constituted “a search” subject to the Charter. The evidence indicated that the Transport Canada Inspector’s actions of placing documents inside the aircraft did not form part of his inspection.

The trial judge determined that as the Inspectors only observed the aircraft from the exterior (including looking through the cockpit windows), their actions did not constitute a search. Further, with the aircraft sitting in a hangar for maintenance, there was not any reasonable expectation of privacy that it would be observed. Therefore, the inspection did not constitute a search pursuant to s.8 of the Charter.

The judge further concluded that s.8.7 of the Aeronautics Act provided authority to the Inspectors to undertake the actions that they did if they believed on reasonable grounds that the aircraft was unsafe or was likely to be operated in an unsafe manner.

The evidence found by Transport Canada during its inspection was therefore admissible against the pilot.

The appeal court found that the claim for inadequate training could not succeed as Cirrus did not owe a duty to the pilot to provide training.  In addition, the claims were barred by the “educational malpractice doctrine”.  The policy behind this doctrine is that courts are considered to be inadequately suited to determine the standard or quality of education provided by an institution. In addition, calculating damages for these types of claims (such as loss of income) would be extremely difficult, if not impossible.

On July 18, 2012, the Minnesota Supreme Court issued its ruling after a further review of the appeal court decision.  In its ruling, the Court confirmed that the duty to warn has never before required a supplier or manufacturer to provide training, only accurate and thorough instructions on the safe use of the product, as Cirrus had done in this case.

As there was no requirement to provide training, the Supreme Court did not have to consider the appeal court’s application of the “educational malpractice doctrine” to flight training.