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Torts - Negligence - Aviation. 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).
Here the court considers the negligent 'standard of care':(1) The Standard of Care
[25] The trial judge used the Supreme Court’s decision in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, to guide and structure her legal analysis of the standard of care, which she set out at paras. 150-158. She did not err in so doing. She drew on para. 28 of Ryan, where Major J. stated:Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. [26] The trial judge examined various sources to determine the legal and industry standards that inform the standard of care and heard expert evidence on them, including: International Civil Aviation Organization (“ICAO”) documents, International Air Transport Association Operational Safety Audit (“IOSA”) documents, the laws of Ukraine, the regulations of the State Aviation Administration of Ukraine, and the policies, procedures, guidelines and manuals of UIA.
[27] The trial judge found that compliance with UIA’s manuals or the laws of Ukraine was not sufficient to meet UIA’s standard of care in deciding whether to permit the flight of PS752 on the morning of January 8, 2020. To meet the standard of care, UIA was required to follow the guidance provided by the ICAO with respect to security risk assessments, safety risk assessments, and flying over or near conflict zones.
[28] More particularly, the trial judge determined that ICAO Document 10084 (“ICAO 10084”), entitled “Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones”, was the most relevant document applicable in the context of a security risk assessment relating to flights over or near conflict zones involving SAMs.
[29] ICAO 10084 prescribes standards, practices, procedures and guidance for assessing whether to permit flights over or near conflict zones. Appendix A of ICAO 10084 sets out the five factors most likely to be associated with an elevated level of risk of an intentional SAM attack on a civilian aircraft: (1) the use of military aircraft in a combat role; (2) the use of military aircraft and aircraft to transport troops or military equipment; (3) poorly trained or inexperienced personnel operating SAMs; (4) the absence of robust command and control procedures and air traffic management over the airspace; and (5) routing flights over or close to locations of assets of high strategic importance that might be considered vulnerable to aerial attack in a conflict situation.
[30] UIA acknowledged that ICAO 10084 was a relevant document for it to consider when conducting its security assessment of PS752. UIA had a Directorate of Aviation Security with three employees qualified to undertake security assessments. All three employees worked on the January 6 security assessment. Mr. Martynenko alone conducted the January 8 security assessment, apparently because it was the morning after Ukrainian Orthodox Christmas, and he did not want to disturb other employees who had spent the holiday with their families. He did consider ICAO 10084. The essential role of ICAO 10084 was confirmed by other experts who testified: John Edwards and Jonathan Gillespie.[4]
[31] The trial judge’s task was to interpret ICAO 10084 in the specific context of flight PS752. The task of interpretation, which in my view applies to texts generally, requires the court to consider the text of ICAO 10084, the context within which it operates, and its purpose: Piekut v. Canada (National Revenue), 2025 SCC 13, 502 D.L.R. (4th) 1, at paras. 42-43, citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 117-18.
[32] I will turn to the text of ICAO 10084 momentarily. Its context is clear from its title: “Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones”. Its general purpose is set out in Chapter 1 in s. 1.1.1:1.1.1 This manual contains advice to States, aircraft operators, (civil and military) air navigation service providers (ANSPs), and other entities deemed appropriate on the subject of risk assessments for civil aircraft operations over or near conflict zones. It contains consolidated guidance to support implementation of relevant ICAO Standards and Recommended Practices (SARPs), ICAO guidance material and industry best practices. It covers the risk from both deliberate acts and unintentional hazards to civil aircraft operations over or near conflict zones. [33] The purpose of the manual is to assist airlines like UIA to assess risk and thereby to ensure the safety of civilian aircraft flying over, through, or near conflict zones. It focuses “primarily on the risk posed by long-range surface-to-air missiles (“SAMs”) as these are currently considered to pose the most significant risk to civil aircraft operating over or near conflict zones”: at s.1.1.3.
[34] The trial judge looked at the distinction between security assessments and safety assessments, at para. 221:When conducting risk assessments for flying over or near conflict zones, para. 4.1.2 of ICAO 10084 provides that “the characteristics of armed conflicts require a risk assessment process that should appropriately consider both security and safety elements”. Although security and safety assessments are different in nature, “they need to be complementary”:
Security deals with the intentional act to commit an act of unlawful interference, whereas safety is concerned with the management of hazards stemming from unintentional negative impact on the performance of the systems related to the operation. A comprehensive risk assessment process will address all potential actions involving implications for civil aircraft operations over or near conflict zones.
[Emphasis added.] [35] She concluded that, under ICAO 10084, a safety and a security assessment were both required in assessing the risk to PS752 when in or near a conflict zone: at para. 229. This conclusion was supported by Mr. Gillespie’s evidence, and also the IOSA Standards Manual. At paras 39-70 the court walks through the facts of the case respecting standard of care.
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