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Aviation - Montreal Convention (2). Air Canada v. Landry
In Air Canada v. Landry (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a Small Claims Court appeal (by Air Canada), this brought against an order "awarding damages to each of the Respondents as a result of delayed flights and denial of boarding".
Here the court considers the Montreal Convention [under the Carriage by Air Act] and the Air Passenger Protection Regulations [under the Canada Transportation Act]:The Alleged Montreal Convention Error
[14] Air Canada raises a preliminary issue that the Deputy Judge demonstrated his lack of understanding of the applicable regime when he wrote that each respondent was entitled to $1,000 compensation, “whether the APPR or the Montreal Convention is relied upon.” It is true that this is an incorrect statement of law. The standardized compensation of $1,000 is available only through the APPR. However, the Appellant does not point to how this misstatement effected the Deputy Judge’s analysis with respect to damages that were ordered pursuant to the Montreal Convention. I conclude that it had no effect, as is clear from his reasoning.
[15] The Appellant’s real complaint is two-fold. First, that the Deputy Judge erred in holding that damages for “breach of contract” were available under the Montreal Convention. Second, it is alleged that the Deputy Judge erred in failing to find that the term “delay” in Article 19 of the Montreal Convention means “reasonable delay.”
[16] I do not accept that the Deputy Judge made either of these errors.
[17] Article 19 of the Montreal Convention reads as follows:The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures [emphasis added]. [18] Article 22 of the Montreal Convention limits the amount of damages that can be claimed in relation to any delays that have occurred.
[19] The Deputy Judge found that Air Canada did not prove that it had taken all measures reasonably required to avoid the delay. That finding is entitled to deference on appeal. Indeed, the Appellant does not challenge that finding. As a result, the Respondent was entitled, pursuant to the Montreal Convention, to damages occasioned by the delay. Although the Deputy Judge used the phrase “breach of contract,” he ordered damages that flowed directly from the delay. Not only was he entitled to do so, Article 19 of the Montreal Convention required him to. The amount ordered was below the threshold set out in Article 22. The use of the phrase “breach of contract” does not detract from the Deputy Judge’s analysis of what damages flowed from the delay caused by Air Canada.
[20] The Appellant further argues that because the Respondent pre-emptively booked a new flight, there is no evidence as to what the actual delay would have been if Air Canada had rebooked them. As a result, the Respondent is not entitled to damages. It is submitted that there is a sound policy reason for ensuring that passengers do not “skip the queue” by rebooking before the airline has had an opportunity to do so.
[21] In light of the evidence led at trial and the factual findings made by the Deputy Judge, this argument has no merit.
[22] There was evidence at trial that Air Canada has a re-booking tool that will attempt to automatically re-book the passenger on a later flight(s) to their ultimate destination if there are delays and, if the tool is successful, the passenger will receive a notification of their revised itinerary upon the first flight. When the automated tool does not re-book the passenger, for whatever reason, the passenger must seek assistance from Air Canada and request re-booking from the appropriate agent at the airport or call Air Canada’s call centre, which is open 24 hours a day. However, there was no evidence that the re-booking tool had been activated or that Air Canada made any other attempt to rebook the Respondent. There was no evidence that the Respondent had been informed that he must wait to be rebooked. In fact, there is nothing in the tariff or in the Montreal Convention that states that a passenger must wait to accept a new flight from the airline. On the contrary, there was uncontradicted evidence that an Air Canada employee had told the Respondent that he had made the right decision to rebook.
[23] As noted by the Deputy Judge, this entire claim could have been avoided if Air Canada, in its multitude of emails to its waiting passengers in Montreal, had clearly stated words to the effect that he should not make any attempts to rebook and that Air Canada would do it automatically.
[24] It is not the role of this Court to ignore the evidence led at trial and the findings of fact made by the Deputy Judge in order to fashion a policy that one of the parties believes would be “sound.”
The Alleged Delay vs. Refund Error
[25] The Deputy Judge found that the Respondent arrived in Lisbon on July 4th - 24 hours and 20 minutes after the originally scheduled time.
[26] S. 19 of the APPR reads as follows:(1) If paragraph 12(2)(d) or (3)(d) applies to a carrier, it must provide the following minimum compensation:
(a) in the case of a large carrier,
(i) $400, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by three hours or more, but less than six hours,
(ii) $700, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by six hours or more, but less than nine hours, or
(iii) $1,000, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by nine hours or more; [27] Section 19(2) of the APPR section limits the delay compensation to $400 in the event the passenger’s ticket is refunded under section 17(2), which states:If the alternate travel arrangements offered in accordance with subsection (1) do not accommodate the passenger’s travel needs, the carrier must
(a) if the passenger is no longer at the point of origin that is indicated on the original ticket and the travel no longer serves a purpose because of the delay, cancellation or denial of boarding, refund the ticket and provide to the passenger, free of charge, a confirmed reservation for a flight to that point of origin that accommodates the passenger’s travel needs; and
(b) in any other case, refund the unused portion of the ticket [emphasis added]. [28] The Appellant submits that, in the context of Sections 12(2) and 17 of the APPR, section 19 should be interpreted as providing standardized compensation in the case of delay only when the passenger accepts an alternative travel arrangement offered by the carrier under the original contract of carriage pursuant to Section 17 of the APPR. If the passenger is not provided with or rejects an alternative travel arrangement by a carrier, then the carrier is obligated to provide a refund of the unused portion of the ticket pursuant to Section 17 and provide standardized compensation of $400.00 in the case of a large carrier pursuant to Section 19(2) of the APPR.
[29] I do not accept the Appellant’s submission. On a plain reading of the legislation, section 17(2) is only invoked if the airline has offered the passenger alternative travel arrangements. In other words, an offer of alternative travel arrangements is a prerequisite to the application of both sections 17(2) and 19(2). The Deputy Judge found as a fact that no such alternative travel arrangements were offered in this case. While Air Canada eventually provided a refund, it did not do so in accordance with subsection 17(2) because it had not offered alternative travel arrangements. As a result, section 17(2) has no application here. Absent the applicability of section 17(2), the proper compensation provision is that found in section 19(1)(a)(iii). The Deputy Judge was correct to award standard compensation in the amount of $1,000 to the Respondent. . N.S. v. Ukraine International Airlines PJSC
In N.S. v. Ukraine International Airlines PJSC (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from the trial judge's finding that the defendant to a class proceeding (and to numerous individual proceedings) had "failed to prove, on a balance of probabilities, that it was not negligent", which dictated that they are not damage-limited by the Montreal Convention (for air travel):[3] As ordered by Glustein J. on August 23, 2023, the plaintiffs agreed to a modified trial process to expedite a trial to determine the negligence and fault, if any, of UIA. At trial, the parties agreed that UIA was strictly liable for the deaths of the passengers under the Montreal Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, 2242 U.N.T.S. 309, Article 21. Under the Montreal Convention, if UIA is found to not have been negligent in allowing flight PS752 to depart Tehran, then its liability for each passenger would be limited to roughly $235,000 per passenger. But if UIA does not establish that it was not negligent, then its liability is unlimited and would be determined in accordance with the ordinary principles of tort law. . Air Canada v. Canadian Transportation Agency [no remedy for temporarily lost luggage]
In Air Canada v. Canadian Transportation Agency (Fed CA, 2024) the Federal Court of Appeal allowed an Air Canada appeal, this from "a decision of the Canadian Transportation Agency" [under s.41 CTA] awarding "compensation for the loss of his checked baggage under Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air" (the 'Montreal Convention'), here where the luggage was eventually returned to the respondent passenger:[2] The Agency found that even though Air Canada eventually located Mr. Scordo’s baggage and returned it to him, a claim for lost baggage existed under Article 17(3) of the Montreal Convention since the baggage was returned to Mr. Scordo more than 21 days after the expected arrival date. It also found that Air Canada was responsible under Article 17(2) of the Montreal Convention for the loss of Mr. Scordo’s baggage. As a result, it concluded that Air Canada had failed to apply the terms and conditions of carriage set out in its Tariff with regard to the liability of carriers respecting baggage, as required by subsection 110(4) of the Air Transportation Regulations, S.O.R./88‑58, as amended.
[3] The determinative issue in this appeal is whether the Agency correctly interpreted the Montreal Convention in awarding damages to Mr. Scordo for lost baggage despite the fact that the luggage was returned to him prior to the filing of his application, with no alleged damage or loss to the baggage or its content.
[4] As a statutory appeal raising a question of law, the standard of review is correctness (Air Canada v. Robinson, 2021 FCA 204 at para. 31).
[5] In our view, the Agency erred in considering Mr. Scordo’s claim under Articles 17(2) and 17(3) of the Montreal Convention.
[6] The Montreal Convention is an international treaty that has force of law in Canada by virtue of subsection 2(2.1) of the Carriage by Air Act, R.S.C. 1985, c. C-26. It applies to all international carriage by aircraft of persons, baggage and cargo and sets out a number of rules governing the liability of air carriers. It also sets the monetary limits of the carrier’s liability (Thibodeau v. Air Canada, 2014 SCC 67).
[7] Article 17(2) of the Montreal Convention establishes the carrier’s liability for the loss of checked baggage while in the charge of the carrier. Although Article 17(3) entitled Mr. Scordo to claim his checked baggage as lost since it had not arrived at its destination at the expiration of 21 days after the expected arrival date, the presumption of loss was rebutted when Air Canada found the checked baggage and delivered it to him well before Mr. Scordo filed his application for compensation.
[8] After the return of Mr. Scordo’s luggage, the Agency could no longer treat the claim as one of lost luggage under Article 17 of the Montreal Convention. Instead, Mr. Scordo’s claim was one of delay occasioned in the carriage of baggage, as set out in Article 19 of the Montreal Convention. The Agency’s interpretation of Article 17(3) fails to recognize the distinction drawn by the Montreal Convention between lost baggage and baggage that is delayed. Moreover, it has the effect of overcompensating Mr. Scordo for a loss that did not occur since the items in his luggage did not need replacement. Air Canada did reimburse Mr. Scordo for the interim expenses he incurred because of the delay in receiving his checked baggage.
[9] We note that Mr. Scordo and the Agency did not participate in the appeal. With respect to the Agency, perhaps its decision was motivated by the fact that the interpretation and application of Article 17(3) in the underlying decision was rejected in subsequent decisions of the Agency (Decision No. 98-C-A-2020, October 20, 2020, at paras. 29-30; Decision No. 98-C-A-2021, September 14, 2021, at paras. 41-42). . International Air Transport Association v. Canada (Transportation Agency) [summary]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
Here the court analyzes whether these Regulations are intra vires (they are):V. Analysis
[27] As I will explain, the disposition of this appeal turns on the vires question, which I answer in the negative. Because the Regulations do not provide for an “action for damages”, they do not fall within the scope of the Montreal Convention’s exclusivity principle. Instead, the Regulations are better understood as creating a consumer protection scheme that operates in parallel with the Montreal Convention, without trenching on its liability limitation provisions. Because the Regulations do not conflict with the Montreal Convention as implemented by the CAA, there is no basis to conclude that they are ultra vires the CTA. For that reason, it is not necessary to consider the alternative arguments by the Attorney General and the Agency regarding: first, whether denial of boarding and cancellation qualify as “delays” for the purposes of Article 19; and, second, whether Parliament has directed the Agency to regulate in a manner that is inconsistent with Canada’s obligations under the Montreal Convention.
[28] My analysis proceeds in three parts.
[29] First, I consider the scope of the Montreal Convention and the exclusivity principle. In this, I am guided by this Court’s consideration of the Montreal Convention in Thibodeau.
[30] As I explain below, while state practice is not dispositive in giving meaning to the Montreal Convention and resolving this appeal, it still plays a role under the approach to treaty interpretation set out in the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”). Thus, I also address the evidentiary issue raised by the appellants, and deal with the circumstances in which expert evidence concerning state practice, and international law more broadly, is and is not admissible.
[31] Second, I consider the scope of the Regulations, and explain how they function as a consumer protection scheme that provides for statutory entitlements that are not contingent on showing harm to the claimants suffered as a result of an injury caused by another.
[32] Third, I examine what constitutes a legislative conflict and conclude that, because the Regulations fall outside the scope of Article 29, no conflict exists between the Regulations and the Montreal Convention (as implemented by the CAA). As a result, I conclude that the Regulations are not ultra vires the CTA.
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D. The Regulations Do Not Conflict With the Montreal Convention and Thus Are Not Ultra Vires the CTA
[91] I now turn to the central issue in this appeal: are the Regulations ultra vires the CTA? As I shall explain, they are not. The Regulations fall outside the scope of Article 29 of the Montreal Convention and therefore there is no conflict between the CTA and the Montreal Convention, as implemented by the CAA.
(1) What Constitutes a Conflict?
[92] In Thibodeau, this Court explained that[c]ourts presume that legislation passed by Parliament does not contain contradictions or inconsistencies and only find that they exist when provisions are so inconsistent that they are incapable of standing together. Even where provisions overlap in the sense that they address aspects of the same subject, they are interpreted so as to avoid conflict wherever this is possible. [para. 89] Thus, to find a conflict between the Montreal Convention and the impugned Regulations, the latter must be “so inconsistent with” the former that they are “incapable of standing together” (Daniels v. White, 1968 CanLII 67 (SCC), [1968] S.C.R. 517, at p. 526).
[93] The inquiry into whether one statute conflicts with another is distinct from the presumption that Parliament legislates in conformity with international law and “the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations” (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53). Where, as here, the treaty in question has been implemented in Canadian law, the test for statutory conflicts applies and there is no need to have regard to the presumption of conformity. . International Air Transport Association v. Canada (Transportation Agency) [foreign jurisprudence]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
Here the court comments on the use of foreign jurisprudence in treaty interpretation, here in relation to the Montreal Convention:(4) Foreign Jurisprudence
[50] In light of the Montreal Convention’s objective of “achieving international uniformity, we should pay close attention to the international jurisprudence and be especially reluctant to depart from any strong international consensus that has developed in relation to its interpretation” (Thibodeau, at para. 50). Having considered the text and context of the Montreal Convention along with its history and purpose, I turn now to the manner in which courts of other state parties have considered the Montreal Convention.
[51] As noted in the reasons of the Federal Court of Appeal, the European Court of Justice (“ECJ”) has considered the scope of Articles 19 and 29 in decisions addressing (and rejecting) challenges to the European Union’s standardized passenger compensation scheme on the basis that it conflicts with the Montreal Convention.
[52] In the first such decision, the ECJ characterized Article 19 as governing “individual” damage resulting from delay that is “inherent in the reason for travelling” and which requires “a case-by-case assessment of the extent of the damage caused” so as to provide “compensation granted subsequently on an individual basis” (International Air Transport Association v. Department for Transport, C-344/04, [2006] E.C.R. I-403 (Grand Chamber), at paras. 43-44). The ECJ further noted that Article 19 and the other provisions in Chapter III “lay down the conditions under which any actions for damages against air carriers may be brought by passengers who invoke damage sustained because of delay” (para. 42 (emphasis added)). Determining the nature of the damage sustained by a given passenger as a result of a flight delay implicates a case-by-case analysis. This is distinct from a standardized approach:Any delay in the carriage of passengers by air . . . may, generally speaking, cause two types of damage. First, excessive delay will cause damage that is almost identical for every passenger. . . . Second, passengers are liable to suffer individual damage, inherent in the reason for travelling, redress for which requires a case-by-case assessment of the extent of the damage caused and can consequently only be the subject of compensation granted subsequently on an individual basis.
It is clear from Articles 19, 22 and 29 of the Montreal Convention that they merely govern the conditions under which, after a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis, that is to say for compensation, from the carriers liable for damage resulting from that delay.
It does not follow from these provisions, or from any other provision of the Montreal Convention, that the authors of the Convention intended to shield those carriers from any other form of intervention, in particular action which could be envisaged by the public authorities to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts. [paras. 43-45] [53] The ECJ built on this decision in noting that compensation for the loss of time inherent in a delay that is “suffered identically by all passengers” falls outside the scope of Article 19 and is not subject to the exclusivity principle (Nelson v. Deutsche Lufthansa AG, C-581/10 and C-629/10, [2013] 1 C.M.L.R. 42 (p. 1191), at paras. 49-56).
[54] Courts in the United States have also considered the scope of the Montreal Convention and its predecessors. The United States Supreme Court, in an appeal addressing what was covered by the liability cap associated with “damage sustained” in international carriage, linked damages recoverable under the Warsaw Convention to “compensation for harm incurred” as determined by the domestic law of contracting parties (Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), at p. 227). Three years later, in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999), at p. 175, the United States Supreme Court described the Warsaw Convention’s pre-emptive effect (as amended by Montreal Protocol No. 4 to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Protocol done at The Hague on 28 September 1955, 2145 U.N.T.S. 31) as “preclud[ing] passengers from bringing actions under local law when they cannot establish air carrier liability under the treaty” (emphasis added). The United States Supreme Court concluded that “the [Warsaw] Convention’s preemptive effect on local law extends no further than the Convention’s own substantive scope” (p. 172).
[55] And, in an appeal before the Second Circuit Court of Appeals considering whether a private suit for discrimination was precluded by the Warsaw Convention, Circuit Judge Sotomayor (as she then was) described the remedial system it created as one that is “designed to protect air carriers against catastrophic, crippling liability by establishing monetary caps on awards and restricting the types of claims that may be brought against carriers” (King v. American Airlines, Inc., 284 F.3d 352 (2002), at p. 357). She further noted that, while the discrimination claim was barred by the Warsaw Convention, the plaintiffs could avail themselves of “other remedies”, including filing “a complaint with the Secretary [of Transportation]” who, under United States law, “has the authority to address violations of [Federal Aviation Act, 49 U.S.C. § 41310(a)] provisions, including the power to file civil actions to enforce federal law” (p. 362).
[56] The appellants submit that the ECJ decisions addressed are “highly controversial” and “wrong and irreconcilable with Thibodeau” (A.F., heading of para. 60). They refer to academic articles criticizing the decisions, and submit that this Court should consider International Air Transport Association v. Department for Transport and its progeny as having no persuasive effect. While academic articles can provide useful insights and perspectives, they can only be persuasive, not binding (R. v. McGregor, 2023 SCC 4, at para. 102; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 274, per Abella and Karakatsanis JJ., concurring; see also R. v. Kirkpatrick, 2022 SCC 33, at para. 247).
[57] More importantly, there is no basis on which to disavow the reasoning in the ECJ or the American decisions. Rather, they help to illustrate the meaning of an “action for damages” and the scope of the Montreal Convention, and suggest a meaning that is consonant with the text, context and purpose considered above. These cases establish that an “action for damages” seeks to address individualized harm on a case-by-case basis. The term, within the context of the Montreal Convention, does not include standardized compensation that is owed identically to all passengers impacted by a given set of circumstances irrespective of the harm suffered. . International Air Transport Association v. Canada (Transportation Agency) [Vienna Convention]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
The court considers the Vienna Convention on the Law of Treaties, here on the interpretation of the Montreal Convention:(2) The Ordinary Meaning of the Words Chosen by the State Parties When Read in Their Context
[39] The Vienna Convention is the starting point for determining the scope of the Montreal Convention (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at paras. 51-52; Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at pp. 577-78). Article 31 of the Vienna Convention directs that the Montreal Convention, like all treaties, should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Or, as this Court has put it, “[t]he point of departure for interpreting a provision of a treaty is the plain meaning of the text” (Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at para. 16). The English text of Article 31 of the Vienna Convention refers to “ordinary meaning” and this Court in Febles referred to “plain meaning”, in the English version of its reasons. In French, both the text of the Vienna Convention and the Court’s reasons in Febles use the expression “sens ordinaire”. I take these expressions to mean the same thing, that being that the analysis begins with the words chosen by the state parties to the Montreal Convention.
[40] Article 29, in explaining the exclusivity principle, states that the Montreal Convention applies to “any action for damages, however founded” (Thibodeau, at para. 37 (emphasis in original)). The text of Article 29 thus discloses two criteria that guide the application of the exclusivity principle: there must be an “action” that leads to “damages”. The term “action” has a meaning well known to the law: Black’s Law Dictionary defines an “action” as “any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree” ((11th ed. 2019), at p. 37). Similarly, Barron’s Canadian Law Dictionary defines an “action at law” as “[a] judicial proceeding whereby one party . . . prosecutes another for a wrong or injury done [or] for damage caused” or “[a] proceeding by which one party seeks in a court of justice to enforce some right” ((7th ed. 2013), at p. 9). Recalling that the term “action” must be understood in “a broad sense”, I would add that it should be read in light of the growing prominence of non-judicial tribunals and quasi-judicial adjudicators in Canada and elsewhere (see Thibodeau, at para. 60). Thus, I do not foreclose the possibility that a proceeding that occurs outside a court of law may, if it shares the characteristics of a judicial proceeding, also fall within the ambit of an “action” for the purposes of Article 29. . International Air Transport Association v. Canada (Transportation Agency) [summary]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
This is the court's summary of the case:[2] The appellants submit that, because the Regulations require that air carriers compensate passengers on international flights when their flights are delayed or cancelled, or when passengers are denied boarding or their baggage is lost or damaged, the Regulations conflict with the Montreal Convention’s exclusivity principle. In light of this purported conflict, and because the Montreal Convention has been implemented by way of the Carriage by Air Act, R.S.C. 1985, c. C-26 (“CAA”), the appellants assert that the Regulations are ultra vires the regulation-making authority given to the Canadian Transportation Agency (“Agency”) by the Canada Transportation Act, S.C. 1996, c. 10 (“CTA”). I will hereafter refer to the issue of whether the Regulations are within the jurisdiction of the Agency, as conferred by the CTA, as the Regulations being “ultra vires the CTA” or “intra vires the CTA”.
[3] The parties also disagree concerning the admissibility of expert affidavits on questions of international law; such affidavits were introduced in the proceedings below regarding state practice. The law relating to the admissibility of expert evidence, as I explain below, has been settled since this Court’s decision in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.
[4] This Court examined the scope of the exclusivity principle under the Montreal Convention in Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340 (“Thibodeau”), and in that case affirmed that the Montreal Convention is exclusive within the scope of the matters that it addresses, but that the Montreal Convention does not deal comprehensively with all aspects of international carriage by air (para. 47). The same conclusion guides the result in this case. The exclusivity principle in Article 29 of the Montreal Convention applies to any “action for damages”. However, the Regulations do not provide for an “action for damages” because they do not provide for individualized compensation. The entitlements provided for are not tied to harm suffered by the claimant as a result of injury caused by another. Rather, the Regulations create statutory entitlements as part of a consumer protection scheme that operates irrespective of the harm (if any) suffered by the claimant. Thus, the Regulations do not give rise to liability that is pre-empted by Article 29 and so do not conflict with the Montreal Convention as implemented by the CAA. Accordingly, the appeal is dismissed. . Ace Aviation Holding Inc. v. Holden
In Ace Aviation Holding Inc. v. Holden (Div Ct, 2008) the Divisional Court heard a lost luggage claim where a second person who had property in the checked passenger's luggage also sued for the value of their loss. The case is also interesting for it's involvement of the treaty that limits passenger baggage losses:[4] The rights and responsibilities of the Holdens and Air Canada relative to the Holdens' international flight to New York is governed by the Convention for the Unification of Certain Rules for International Carriage by Air ("the Montreal Convention, 1999") which is incorporated into the laws of Canada by the Carriage by Air Act, R.S.C. 1985, c. C-26 as amended.
[5] The relevant article for purposes of deciding the claim and this appeal is Article 22(2) of the Montreal Convention, 1999 which provides:In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger's actual interest in delivery at destination. [6] There is no dispute that the value of 1000 Special Drawing Rights was $1,776.49 at the time of loss. ....
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[21] In my view, the proper construction of the word "passenger" in the context of Article 22(2) is the one which denotes an individual who is a passenger and who has checked the piece of baggage that is lost. That construction is consonant with the purposes of the Convention and results in all of the language of the Article having meaning and internal logic. It avoids the potential for exposure to an uncertain quantum of liability and exposure to an uncertain number of claimants. There is no prejudice to the passenger as he or she is at liberty to check his or her own bag and/or make the special declaration contemplated in the Article. Accordingly, I would allow the appeal and set aside the judgment in favour of William Holden in the amount of $1,776.49.
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