• Ontario Court Strikes Out Passenger Claims for Aggravated Damages and Common Law Negligence Pursuant to Warsaw and Montreal Conventions
  • December 12, 2013
  • Law Firm: Borden Ladner Gervais LLP - Toronto Office
  • On January 14, 2011, Ashlyn O’Hara was a passenger on Air Canada Flight 878 [“AC878”] from Toronto to Zurich. During the flight, the First Officer went to sleep for approximately 75 minutes. When the First Officer awoke, the Captain informed him that a United States Air Force Boeing C-17 had appeared as a traffic alert and collision avoidance system target on the flight’s navigational display. Shortly thereafter, the First Officer mistook the planet Venus, visible in the sky ahead, as the Boeing C-17. Despite the Captain’s continuing reassurances to the contrary, the First Officer continued to incorrectly identify Venus as the Boeing C-17. Suddenly, the First Officer violently forced the aircraft’s control column forward, causing AC878 to enter a sudden and steep dive. The Captain was forced to execute an emergency manoeuvre to restore the aircraft to a straight and level heading. As a result, passengers and objects within the aircraft were violently shaken and thrown in the cabin.

    Several passengers alleged that they suffered serious psychological and physical injuries as a result of the incident. Ms. O’Hara commenced a class action on May 7, 2012. On behalf of her fellow passengers, she claimed for:

    • physical and psychological injuries resulting from the emergency manoeuvre; and

    • punitive, aggravated and/or exemplary damages resulting from the manner in which the airline communicated with the passengers and the public about the cause of the incident and the manner in which the airline obtained releases from some passengers.

    Air Canada brought a motion for an order striking out parts of the claim pursuant to the Montreal Convention and the Warsaw Convention [the “Conventions”]. The Ontario court had to consider the application of the Conventions to the passengers’ claims.

    The court first confirmed that under the Conventions, there could be no valid claim for purely psychological injury, or for punitive or exemplary damages. However, there could be a claim for aggravated damages.

    The Court struck the passengers’ claims for psychological and emotional injuries. It considered whether the claims as pleaded could describe psychological injuries that reached the threshold of “bodily injury” as required by the Conventions. It concluded that they could not.

    The Court then addressed the passengers’ claim for aggravated damages, considering that aggravated damages were meant to be additional compensatory damages where the injury was sustained in “humiliating or undignified circumstances.” In the Statement of Claim, the claims for aggravated damages were simply listed along with the passengers’ claims for exemplary and punitive damages. There was no separate paragraph dealing with those claims or explaining or particularizing the basis for those claims. As a result, the Court agreed with the defendants that there was really no articulable claim for aggravated damages, and the Court struck those claims.

    Finally, the Court addressed the passengers’ assertion that punitive and exemplary damages were available to them at common law under the law of negligence despite the clear language of the Conventions. Because the passengers had pleaded that the airline was negligent in various ways after the flight and in circumstances that did not occur on board the plane, the passengers pleaded that Conventions did not apply to those claims.

    The Court disagreed, finding instead that any common law claim was precluded by the Conventions. The Court explained that international case law has routinely held that where liability of an airline for international carriage is in issue, the conventions are exclusive and preclude the application of domestic law. Furthermore, the Court found that any failures by the airline to advise passengers of the true cause of the in-flight episode after the flight were causally connected to the episode itself. This nexus served to reinforce the application of the Conventions.

    While perhaps not surprising in the result, this case reinforces the Conventions as a complete code for an airline’s liability for damages arising from international carriage by air.