O’Mara v. Air Canada, 2013 ONSC 2931

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Ontario Superior Court of Justice

Facts

[4] On January 14, 2011, Ms. O’Hara was a passenger on Air Canada Flight AC878 scheduled to fly from Toronto to Zurich, Switzerland. The events of Flight AC878 and some of the aftermath of those events are pleaded in paras. 8 to 19 of her statement of claim as follows:

  1.  On the evening of January 13, 2011, at approximately 9:38 p.m. eastern standard time, AC878 departed Lester B. Pearson International Airport, in Toronto, Ontario, en route to Zurich, Switzerland with 95 passengers, 6 flight attendants and two flight crew on board.
  2.  At or around 12:40 a.m. on the morning of January 14, 2011, the First Officer expressed to the Captain a need for rest and went to sleep.
  3. At or around 1:55 a.m. on January 14, 2011, the Captain made a mandatory position report with Shanwick Oceanic Control with respect to the aircraft’s positioning which awoke the First Officer from his sleep of approximately 75 minutes. At the same time, a United States Air Force Boeing C-17 flying westbound at 34,000 feet appeared as a traffic alert and collision avoidance system target on AC878’s navigational display. The Captain apprised the First Officer of this traffic.
  4. Over the next minute or so, the Captain adjusted the map scale on the navigational display in order to view the traffic alert and collision avoidance system target and occasionally looked out the forward windscreen to acquire the aircraft visually. At or around the same time, 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.
  5. The First Officer continued to erroneously interpret the oncoming aircraft’s position as being above and descending towards AC878. Without [page677] warning he violently forced the aircraft control column forward causing AC878 to enter a sudden and steep dive into the path of the oncoming aircraft. 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 (the “Terrifying Episode”).
  6. As a result of the Terrifying Episode, passengers aboard AC878 were violently shaken and thrown. Many passengers were catapulted into the aircraft’s ceiling and interior. Objects were dangerously projected throughout the interior of the aircraft. As described below, Class Members suffered serious physical and psychological injuries.
  7. During the remaining three hours of AC878, passengers were terrified and feared for their lives. They were not provided with any explanation for the Terrifying Episode by the Flight Crew.
  8. Following the landing of AC878 on January 14, 2011, Air Canada spokesperson Peter Fitzpatrick claimed that the Terrifying Episode occurred when AC878 hit some unexpected turbulence.
  9. No further explanation for the Terrifying Episode was ever offered to any Class Member or to the public by Air Canada.
  10. Following AC878 and prior to April 16, 2012, in response to complaints made by passengers, the defendant Air Canada, sought and obtained releases from some Class Members in exchange for modest compensation. The release demanded by Air Canada included an indemnity provision purporting to make the claimant an insurer of Air Canada for any additional claims brought. At no time prior to the releases being executed did Air Canada disclose the true cause of the Terrifying Episode of which it was aware. Furthermore, Air Canada failed to correct the misleading statement made by its spokesperson on January 14, 2011.
  11. On April 16, 2012, the Transportation and Safety Board of Canada published a report (the “Report”) finding that the Terrifying Episode was not caused by turbulence but was in fact caused by the inappropriate actions of the First Officer.
  12. The Plaintiff and Class Members suffered damages which were a direct result of the Terrifying Episode and the negligence/tortuous conduct of the Defendants, the particulars of which are set out below.

[5] On May 7, 2012, Ms. O’Hara commenced a proposed class action under the Class Proceedings Act, 1992. In her statement of claim, on behalf of a putative class of fellow passengers, she claims damages resulting from the events of the flight. Ms. O’Mara’s statement of claim sets out the legal basis for her claims, in paras. 20 to 24, which state:

  1. Air Canada entered into contracts of international carriage with each of the passengers on AC878 including the Plaintiff, Ashlyn O’Mara.
  2. The contracts of international carriage and the liability of Air Canada and its employees are governed in part by the provisions of the Carriage by Air Act, R.S. 1985, c. C-26, as amended. [page678]
  3. The Plaintiff pleads and relies upon the provisions of the Carriage by Air Act, R.S.1985, c. C-26, as amended including, in particular, Articles 17 and 21 of the Montreal Convention and articles 17, 22, and 25 of the Warsaw Convention.
  4. The events of AC878 as described above, constitute an accident within the meaning of Article 17 of the Montreal Convention and Article 17 of the Warsaw Convention and accordingly the defendant, Air Canada, is liable to its passengers for damage sustained in case of bodily injury upon the condition only that the incident which caused the injury took place on board AC878 or in the course of any of the operations of embarking or disembarking.
  5. In the event that bodily injury of any passenger s claims governed by the Montreal Convention exceeds $100,000 Special Drawing Rights, the Plaintiff states that the Terrifying Episode was caused by the negligence of Air Canada and its employees including the First Officer and the Captain, and accordingly, Air Canada cannot avail itself of any of the limits on liability under Article 21 of the Montreal Convention.

Issue(s)

No issues drafted yet for this case.

Discussion

[33] The Conventions address three areas of liability of air carriers; namely: (a) damages sustained by a passenger arising from death, wounding or other bodily injury (art. 17); for damage or loss of baggage or cargo (art. 18); and (c) for damage occasioned by delay in the carriage by air of passengers, baggage or cargo (art. 19).

[34] Under the Warsaw Convention, the monetary limit of a carrier’s liability for personal injury damages was set at 125,000 francs (around US$8,300) and this was amended in the 1955 Hague Protocol. Limits on liability are, however, removed by the Montreal Convention.

[35] Under art. 21 of the Montreal Convention, there is now a two-tier scheme, based on the International Monetary Fund’s special drawing right (“SDR”). The first tier is strict liability, a no-fault tier for damages not exceeding 100,000 SDRs. The second tier is without monetary limit, but the carrier is permitted to defend itself for claims about the first tier. Article 21(2) provides that the carrier shall not be liable if it proves either that the damage was not due to the negligence or other wrongful act or omission of the carrier, or that the damage was solely due to the negligence or wrongful act of a third party.

[36] Article 17(1) of the Montreal Convention governs liability for damage sustained in case of death or bodily injury. It states:

17(1) The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

[37] Article 17(1) of the Montreal Convention should be read with art. 29, which provides as follows:

29. In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

[38] Article 17(1) of the Montreal Convention is not significantly different than its predecessor, art. 17 of the Warsaw Convention, as amended, which states:

17. The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damages so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

[39] Article 17 of the Warsaw Convention should be read with art. 24, which provides as follows:

24(1) In the cases covered by Articles 18 [damage or loss of baggage or cargo] and 19 [delay of baggage or cargo] any action for damages, however [page685] founded, can only be brought subject to the conditions and limits set out in this Convention.

(2) In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are persons who have the right to bring suit and what are their respective rights.

[40] Under art. 17 of the Warsaw Convention or art. 17(1) of the Montreal Convention, the damage must be caused by an “accident”, and the injury must be “bodily” and nothing else. As noted above, under the first stage of my analysis, I assume that all of Ms. O’Hara’s claims are covered by these articles.

[41] Given that a major purpose of the Conventions was to introduce consistency and uniformity in the international law applicable to air carriage, in interpreting the Conventions, it is important that there be consistency in interpretation from one country to another, and, thus, there must be a very sound reason to depart from the precedents established from around the world: Connaught Laboratories Ltd. v. British Airways (2002), 2002 CanLII 4642 (ON SC), 61 O.R. (3d) 204, [2002] O.J. No. 3421 (S.C.J.), at para. 50, affd (2005), 2005 CanLII 16576 (ON CA), 77 O.R. (3d) 34, [2005] O.J. No. 2019 (C.A.); Chau v. Delta Airlines Inc. (2003), 2003 CanLII 41999 (ON SC), 67 O.R. (3d) 108, [2003] O.J. No. 4885 (S.C.J.), at para. 9; Ace Aviation Holding’s Inc. v. Holden, 2008 CanLII 40223 (ON SCDC), [2008] O.J. No. 3134, 296 D.L.R. (4th) 233 (Div. Ct.), at para. 19; Gontcharov v. Canjet (2012), 111 O.R. (3d) 135, [2012] O.J. No. 2479, 2012 ONSC 2279 (S.C.J.), at paras. 18-21; Plourde c. Service Aérien F.B.O. Inc. (Skyservice), [2007] Q.J. No. 5307, 2007 QCCA 739, at para. 55, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 400.

3. Purely psychological injuries under the Conventions

[42] The term bodily injury as used in the Montreal Convention is intended to have the same meaning as in the Warsaw Convention, and the case law from around the world about the Warsaw Convention and about the Montreal Convention holds that compensation for purely psychological injuries that do not manifest physical injury or an injury to the body are not recoverable under the Conventions. See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 111 S. Ct. 1489 (1991) (United States); Sidhu v. British Airways, [1997] A.C. 430, [1997] 2 Lloyd’s Rep. 76 (H.L.) (England); Kotsambasis v. Singapore Airlines (1997), 42 N.S.W.L.R. 110 (C.A.) (Australia); Morris v. KLM Royal Dutch Airlines, [2002] 2 A.C. 628, [2002] UKHL 7 (H.L.) (England); Chau v. Delta Airlines Inc., supra (Canada); Walton v. MyTravel Canada Holdings Inc., [2006] S.J. No. 373, 2006 SKQB 231 (Saskatchewan); Plourde c. Service Aérien F.B.O. Inc., supra (Quebec); Simard c. Air Canada, [2007] J.Q. No. 11145, 2007 QCCS 4452 (Quebec); [page686] Lukacs v. United Airlines Inc., [2009] M.J. No. 43, 2009 MBQB 29, affd [2009] M.J. No. 385, 2009 MBCA 111 (Manitoba); Ehrlich v. American Eagle Airlines Inc., 360 F.3d 366 (2004) (United States); Lee v. American Airlines Inc., 28 Avi 16,552 (N.D. Tex. 2002), affd 29 Avi 18,426 (5th Cir. 2004) (United States); Gontcharov v. Canjet, supra (Canada).

[43] In Morris v. KLM Royal Dutch Airlines, supra, Lord Hobhouse said bodily injury means [at para. 143]:

. . . a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset such as fear, distress, grief or mental anguish. . . . A psychiatric illness may often be evidence of a bodily injury or the description of a condition which includes bodily injury. But the passenger must be prepared to prove this, not just prove a psychiatric illness without evidence of its significance for the existence of a bodily injury.

[Emphasis in original]

[44] In my opinion, it is plain and obvious that Ms. O’Mara’s claim under the Conventions for pure psychological injury is legally untenable. It follows that the various references to psychological and emotional injuries should be deleted from the statement of claim. Class members should not be under any misapprehension that there may be compensation for purely psychological injuries.

Useful for

Damages not available for purely mental injuries under Article 17

No remedy when none available under the Convention



Treaty provisions considered

Article 17 MC99

Article 19 MC99

Montreal Convention 1999



Legislation considered

None identified.

Key subjects or concepts

Mental Injury/

Published by ALD Editors