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Articles and Publications

May 2017

The United Airlines debacle in the context of Canadian tort law

Ben Carino
Ben Carino,
Associate Lawyer

By Ben Carino

Addendum - added on May 23rd

Airlines have faced increased legal, public relations and operational challenges ever since Dr. David Dao`s forcible removal from his United Airlines flight on April 9, 2017. These challenges can lead to a perfect storm in which airlines may find themselves exposed to significant claims for damages. In Canada, personal injury liability aboard an aircraft is governed by multilateral treaty if the flight is international, and by common law principles in tort and contract if the flight is domestic. This paper will briefly discuss the extent to which airlines may be exposed to liability for domestic and international travel.

International Travel

International flights are governed exclusively by the Montreal Convention (the "Convention") — a multilateral treaty adopted by various member states, including Canada. The Convention was ratified by Canada in 2002 and is incorporated into federal law by virtue of section 2 of the Carriage by Air Act.1

A flight is "international" if a passenger departs from and arrives in two different member states, or if the passenger's flight within a member state has a stopover outside of that state. International carriers are liable for damage sustained due to bodily injury if the accident happened on the aircraft or in the course of embarking or disembarking.2 The Convention contains important conditions and limits of liability, some of which are discussed below.

"The damage sustained by a passenger must qualify as "bodily injury" to trigger liability under the Convention."

Conditions

The damage sustained by a passenger must qualify as "bodily injury" to trigger liability under the Convention. In general, courts have interpreted "bodily injury" to refer to physical injuries, or to psychological injuries that manifest a clear physical injury.3 Pure psychological injuries such as stress or inconvenience appear to be precluded.4

In Gontcharov v. Canjet, flight attendants denied the plaintiff's request for a blanket after his complaint about being cold.5 He was also informed that he was being considered as a "high maintenance" passenger. When the aircraft landed, he was escorted off the aircraft by police and held for four hours. The plaintiff claimed for damages due to severe bronchitis, and for damages for pain, suffering, and mental distress. The motion judge allowed the claim for severe bronchitis to proceed because it fell within the scope of the Convention but struck the plaintiff's claim for psychological damages pursuant to existing case law.

Furthermore, the Convention requires the bodily injury to be caused by an "accident", which has been defined as an "unexpected or unusual event or happening that is external to the passenger".6 Subsequent case law has interpreted "accident" broadly to include intentional acts of wrongdoing. In Balani v. Lufthansa German Airlines Corp., a flight attendant refused to provide a wheelchair to a passenger during disembarkation.7 The passenger was injured in the terminal. The court classified the incident as an accident within the meaning of the Convention.

Finally, the injury must occur on the aircraft or during embarking or disembarking. Courts will apply a chain of causation analysis to determine whether there is a sufficient link between the injury and the flight itself.8 Accordingly, the incidents in Gontcharov and Balani fell under the Convention because they occurred in the terminal during disembarkation.

Limitations of liability

Carriers cannot exclude or limit its liability for proven damages up to 100,000 Special Drawing Rights ("SDR").9 Exposure beyond 100,000 SDRs can be contested by the carrier by proving that the damage was not caused by the negligence or other wrongful act/omission of the carrier or its agents, or was caused instead by a third party. Carriers cannot limit or contract out of liability as prescribed by the Convention.10 There is a two-year limitation period within which an action must be brought.11

Domestic Travel

Actions for personal injury suffered on purely domestic flights within Canada are governed by ordinary principles of common law negligence and contract.12 In general, there is a heavy burden on the carrier to establish that it used all proper and reasonable care to avoid the injury to the passenger.13

Furthermore, while it is possible for a carrier to limit its liability by contract, the enforceability of such terms are subject to what the common law deems reasonable and legally valid in the circumstances. In general, passengers and carriers are bound by a tariff, which reflects the contractual passenger-carrier relationship. Tariffs cover passenger rights and obligations, as well as carrier rights and responsibilities toward the passenger.14

Air Canada`s domestic tariff, for example, bars all actions for personal injury unless (1) Air Canada is given written notice of the claim within 90 days after the alleged incident; and (2) the action is commenced within one year of the incident.15 Although domestic tariffs are not subject to international conventions, the Canadian Transportation Agency has issued decisions that address the potential application of Convention terms to domestic travel to create consistency for travelers.16

Final Thoughts

Although the distinction between domestic and international law is relatively clear in the simplest cases, a number of interesting grey areas dealing with agency and third party liability have emerged in the context of the United Airline debacle.

For example, there is some indication that the incident occurred on a carrier owned and operated by Republic Airline, which contracts with larger airlines to service shorter routes.17 It remains to be seen whether, and to what extent, the United-Republic contract has apportioned liability to deal with the United incident. Canadian law is relatively clear on the allocation of liability due to the acts of an employee or agent versus an independent contractor.

Furthermore, the passenger appears to have been dragged off the plane by Chicago Department of Aviation personnel. It is at least arguable that United employees exercised their legal right to bump a passenger off their plane, and that the Chicago Department of Aviation actually conducted the wrongdoing. Interestingly, it has been reported that the Chicago Department of Aviation security officer has been placed on paid leave pending an internal investigation”.18

The United Airlines incident is a reminder that unexpected liability can arise out of otherwise routine and commonplace situations. Stay tuned to this website for further developments on airline liability in the future.

Addendum

A new Passenger Bill of Rights has been proposed by Federal Transport Minister Marc Garneau as part of a package of amendments to the Canada Transportation Act. The bill would apply to any airline flying to, from, and within Canada19 and would give passengers a better idea on their entitlement to compensation.20

Although the bill is still in its infancy, an early draft indicates that regulations will be created to impose various obligations on carriers.21 For instance, carriers will be obliged to make the terms and conditions of carriage and information regarding any recourse available against a carrier readily available to passengers in clear, concise language. Minimum standards for passenger treatment will be set when flights are delayed or cancelled, or when passengers are denied boarding. A minimum standards of compensation to passengers will be set for inconvenience when the delay, cancellation or denial of boarding is within the carrier's control. Federal Transport Minister Marc Garneau has also stated that carriers will be unable to remove passengers against their will.22

The bill will add a new layer of accountability to the broad liability provisions in the Montreal Convention. The result will be a more comprehensive framework for airline accountability and a blueprint that airlines may use to rearrange their internal operating policies to minimize risk. For instance, a ban on removing passengers against their will would negate some of the exposure faced by airlines when making hard choices on who flies and who doesn't.

The bill is expected to pass in 2018 and will certainly gain more attention as its passage draws near.


1 Thibodeau v. Air Canada, [2014] 3 SCR 340 para 33.
2 Montreal Convention, Article 17, section 1.
3 O'Mara v. Air Canada 2013 ONSC 2931 at para 42.
4 Thibodeau v. Air Canada, [2014] 3 SCR 340 para 64.
5 Gontcharov v. Canjet 2012 ONSC 2279.
6 Ashad v. Lufthansa [2009] O.J. No. 4979 at para 33.
7 [2010] O.J. No. 4719.
8 Gontcharov v. Canjet 2012 ONSC 2279.
9 A Special Drawing Right is a foreign-exchange asset defined by the IMF. SDRs can be exchanged for freely usable currency based on an exchange rate set by the IMF.
10 Article 26 of the Montreal Convention.

11 Article 35 of the Montreal Convention.
12 Laura Safran, Q.C. and Prasad Taksal, The Aviation Law Review, second edition, Canadian chapter.
13 Day v. Toronto Transportation Commission [1940] S.C.R. 433.
14 Canadian Transportation Agency carrier tariffs
15 Rule 115 of Air Canada Domestic Tariff
16 Canadian Transportation Agency, limits of liability for passengers and goods
17 CBC News, "United Airlines pilots say dragged passenger not their fault" (April 14, 2017)
18 Chicago Sun-Times, "Officer involved in dragging man off United flight put on leave" (April 13, 2017)
19 BBC, Canada government tables airline passenger bill of rights
20 Macleans Airline travel compensation to be clarified with passenger bill of rights
21 Airline travel compensation to be clarified with passenger bill of rights
22 BBC, Canada government tables airline passenger bill of rights


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