International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

Canadian courts have accepted that where there are no significant differences between the language of the Warsaw Convention and the Montreal Convention, the interpretation of the Warsaw Convention is relevant and applicable.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

The Supreme Court of Canada has ruled that the Montreal Convention provides the exclusive recourse against airlines for matters falling within the scope of the Montreal Convention. The exclusivity of the liability scheme established under the Montreal Convention extends at least to excluding actions arising from injuries suffered by passengers during flight or embarkation and debarkation when those actions do not otherwise fall within the scheme of permitted claims.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

There is case law in Canada confirming that Chapter V of the Montreal Convention expands the applicability of the Convention to entities not previously covered by the Warsaw Convention. In particular, articles 39 and 43 have resulted in sellers of vacation packages (which include flights) being found to be contracting carriers whose liability is governed by the Montreal Convention. It has not been interpreted to include ground handlers.

There is limited case law in Canada, but courts have decided not to accept that carriage is ‘successive carriage’ in cases governed by the Warsaw Convention unless the domestic carrier had prior knowledge that the ‘itinerary’ included an international segment.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

Canadian courts have interpreted the term ‘accident’ to mean an ‘unexpected or unusual event or happening that is external to the passenger’ in reference to the ruling of the Supreme Court of the United States in Air France v Saks, 470 US 392 (US Cal 1985).

Canadian courts have interpreted the term ‘bodily injury’ to mean a physical injury and have ruled that the Montreal Convention does not allow compensation for purely psychological injury. Psychological injury caused by a‘bodily injury is compensable.

To date, there are no Canadian court decisions interpreting the term ‘embarking’ or ‘disembarking’. When this does occur, it is anticipated that the courts will consider jurisprudence from other jurisdictions, including the US and the UK.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

There are no Canadian court decisions applying the ‘no negligence’ defence in article 21 of the Montreal Convention. We anticipate that the courts would consider jurisprudence from other jurisdictions, including the US and the UK. With regard to the language in article 20 of the Warsaw Convention, Canadian courts have required objective proof on a balance of probabilities. With regard to article 25 of the Warsaw Convention, the courts have applied a subjective test to determine whether the carrier acted recklessly and with knowledge that damage would probably result (see Connaught Laboratories Limited v British Airways, 61 OR (3d) 204, [2002] OJ No. 3421 (ONSC), at paragraph 57).

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

No.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

Canadian courts have generally accepted that the domicile of the carrier and its principal place of business is normally the place where the carrier is incorporated. The place where the tickets are purchased has been found to be the place where the contract is made (see Sakka (Litigation Guardian of) v Air France 2011 ONSC 1995, paragraph 31). In the two court decisions considering the ‘fifth jurisdiction’, courts have declined to rule because of a lack of evidence presented to establish a passenger’s ‘principal and permanent residence’.

Canadian courts recognise the doctrine of forum non conveniens, but have not decided the issue of whether it would be applied to a Montreal or Warsaw action.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

Canadian courts have ruled that the two-year period of limitations is a condition precedent to suit, and therefore absolute (see Titulescu v United Airlines Inc, 2014 ONSC 5683).

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

Canadian courts have accepted that passengers may bring an action against an actual or contracting carrier pursuant to the principles set out in the Warsaw or Montreal Conventions. Courts have applied article 46 of the Montreal Convention in accepting that jurisdiction may be conferred on the domicile or principal place of business of the actual carrier (see Zoungrana c. Air Algérie, 2016 QCCS 2311).