The Ontario Superior Court of Justice recently approved an important settlement that will bring an end to the class action commenced to recover damages arising from the runway overrun of Air France Flight 358 on August 2 2005 (for further details please see "Air France class action developments").(1)

There were 297 passengers on board the aircraft. Of these, 68 entered into early settlements with Air France and 47 initially opted out of the class. Of the opt-outs, three later rejoined the class. Accordingly, there are currently 44 opt-out cases which have not been settled. Of the 68 passengers who settled with Air France alone, most will be entitled to additional compensation because of the settlement. The settlement also covered the claims of 454 persons who claimed as family members of passengers.

The recent settlement was the last of a number of partial settlements. By June 2010 all defendants except NAV Canada had concluded settlements with the class members and obtained judicial approval of these settlements. There was one curious gap in that the settlement arrived at by Air France did not include three claims, as the persons advancing these claims were not members of the class at the time that the partial settlement was reached.

The agreed contributions were as follows:

  • Air France - C$10 million;
  • Goodrich Corporation and Airbus jointly - C$1.65 million; and
  • the Greater Toronto Airports Authority - C$2 million.

As of this point, NAV Canada had settled no claims; however, in November 2010 an agreement was reached, according to which NAV Canada and Air France would pay an additional C$7.1 million. The individual contributions of Air France and NAV Canada have not been made public, but it may be noted that Air France was paying to settle only the three excluded claims, while NAV Canada was buying its way out of the claims of the entire class.

Court approval of the settlement was required and the matter came for hearing before Justice Strathy on January 14 2011. His judgment approving the settlement was released on January 21 2011.

Strathy commented on the aspects of this case which take it out of the ordinary. In particular, he noted the fact that the various defendants were subject to different liability regimes. The claims against Air France were governed by the Montreal and Warsaw Conventions, while claims against other defendants were governed by Canadian common law. It was accepted by all parties that the damages which can be awarded under the conventions are more limited than those recoverable under common law.

A distinction was made between 'convention damages' and 'extra-convention damages'. The basic thrust of all the agreements was that Air France should be responsible for all convention damages and each co-defendant should be responsible for its several share of the extra-convention damages.

Strathy was required to determine whether the proposed settlement was "fair, reasonable and in the best interests of the class as a whole". He unequivocally found that all of these requirements were met and that he was in a good position to make this assessment, having presided over several motions and case conferences as case management judge.

In approving the settlement, he noted the representation of class counsel that each class member would receive approximately 80% of the damages which were likely to have been assessed had the matter proceeded to trial. Communications with the class members seems to have been clear and detailed and there was no opposition to the settlement. Strathy observed that the "settlement is the result of an extensive and hard-fought negotiating process".

In a separate judgment released on the same day as the settlement approval order, Strathy approved the class counsel's request for a fee of C$6,225,000 plus disbursements and costs. He commended the class counsel for their "hard work, outstanding organization, tactical and legal skills and persistence".

While this marks the end of the line for the class action, some 44 opt-out cases remain - some of which are at a very early stage of development.

For further information on this topic please contact Gerard A Chouest at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected]).


(1) Abdulrahim v Air France (2011 ONSC 398).