Canada: Ontario Superior Court of Justice decides on Montreal Convention exclusivity

Michael Wukoschitz's picture

On January 14, 2011, Ashlyn O’Hara was a passenger on Air Canada Flight 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. The Captain apprised the First Officer of this traffic. The First Officer mistook the planet Venus on the forward windscreen for an aircraft despite the Captain advising the First Officer that the aircraft of concern was at the 12 o’clock position and 1,000 feet below AC878. Despite the Captain’s continuing reassurances to the contrary, the First Officer continued to incorrectly identify Venus as the Boeing C-17 and 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 straight and level as its assigned altitude. This entire terrifying episode lasted approximately 46 seconds. As a result, passengers  and objects within the aircraft were violently shaken and thrown in the cabin. During the remaining three hours of AC878, passengers were terrified and feared for their lives. They were not provided with any explanation by the Flight Crew.

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 to strike all claims for punitive, aggravated and exemplary damages, as well as to strike all claims for pure psychological injury, arguing that none of these were recoverable under the Warsaw or Montreal Convention.

Ontario Superior Court of Justice ruled that all references to psychological and emotional injuries be deleted from the statement of claim. In considering the definition of  'aggravated damages', the court made reference to the Supreme Court of Canada's decision in Norberg v Wynrib (2 SCR 226), whereas aggravated damages may be awarded as part of general damages taking into account any aggravating features of the case and to that extent increasing the amount awarded. Aggravated damages therefore must be distinguished from punitive or exemplary damages. The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort. The court accepted Air Canada's argument that aggravated damages are not a separately calculable head of damages. Accordingly, all paragraphs relating to aggravated damages were ordered to be struck from the claim. The court also held that punitive and exemplary damages are not recoverable under the conventions. Futhermore, any common law claim was precluded by the Conventions.

Case: O’Mara v. Air Canada Et Al., 2013 ONSC 283; full text of judgement of May 21, 2013 avaibale here>>.

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