|
Aviation - Montreal Convention (2). International Air Transport Association v. Canada (Transportation Agency) [summary]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
Here the court analyzes whether these Regulations are intra vires (they are):V. Analysis
[27] As I will explain, the disposition of this appeal turns on the vires question, which I answer in the negative. Because the Regulations do not provide for an “action for damages”, they do not fall within the scope of the Montreal Convention’s exclusivity principle. Instead, the Regulations are better understood as creating a consumer protection scheme that operates in parallel with the Montreal Convention, without trenching on its liability limitation provisions. Because the Regulations do not conflict with the Montreal Convention as implemented by the CAA, there is no basis to conclude that they are ultra vires the CTA. For that reason, it is not necessary to consider the alternative arguments by the Attorney General and the Agency regarding: first, whether denial of boarding and cancellation qualify as “delays” for the purposes of Article 19; and, second, whether Parliament has directed the Agency to regulate in a manner that is inconsistent with Canada’s obligations under the Montreal Convention.
[28] My analysis proceeds in three parts.
[29] First, I consider the scope of the Montreal Convention and the exclusivity principle. In this, I am guided by this Court’s consideration of the Montreal Convention in Thibodeau.
[30] As I explain below, while state practice is not dispositive in giving meaning to the Montreal Convention and resolving this appeal, it still plays a role under the approach to treaty interpretation set out in the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”). Thus, I also address the evidentiary issue raised by the appellants, and deal with the circumstances in which expert evidence concerning state practice, and international law more broadly, is and is not admissible.
[31] Second, I consider the scope of the Regulations, and explain how they function as a consumer protection scheme that provides for statutory entitlements that are not contingent on showing harm to the claimants suffered as a result of an injury caused by another.
[32] Third, I examine what constitutes a legislative conflict and conclude that, because the Regulations fall outside the scope of Article 29, no conflict exists between the Regulations and the Montreal Convention (as implemented by the CAA). As a result, I conclude that the Regulations are not ultra vires the CTA.
....
D. The Regulations Do Not Conflict With the Montreal Convention and Thus Are Not Ultra Vires the CTA
[91] I now turn to the central issue in this appeal: are the Regulations ultra vires the CTA? As I shall explain, they are not. The Regulations fall outside the scope of Article 29 of the Montreal Convention and therefore there is no conflict between the CTA and the Montreal Convention, as implemented by the CAA.
(1) What Constitutes a Conflict?
[92] In Thibodeau, this Court explained that[c]ourts presume that legislation passed by Parliament does not contain contradictions or inconsistencies and only find that they exist when provisions are so inconsistent that they are incapable of standing together. Even where provisions overlap in the sense that they address aspects of the same subject, they are interpreted so as to avoid conflict wherever this is possible. [para. 89] Thus, to find a conflict between the Montreal Convention and the impugned Regulations, the latter must be “so inconsistent with” the former that they are “incapable of standing together” (Daniels v. White, 1968 CanLII 67 (SCC), [1968] S.C.R. 517, at p. 526).
[93] The inquiry into whether one statute conflicts with another is distinct from the presumption that Parliament legislates in conformity with international law and “the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations” (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53). Where, as here, the treaty in question has been implemented in Canadian law, the test for statutory conflicts applies and there is no need to have regard to the presumption of conformity. . International Air Transport Association v. Canada (Transportation Agency) [foreign jurisprudence]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
Here the court comments on the use of foreign jurisprudence in treaty interpretation, here in relation to the Montreal Convention:(4) Foreign Jurisprudence
[50] In light of the Montreal Convention’s objective of “achieving international uniformity, we should pay close attention to the international jurisprudence and be especially reluctant to depart from any strong international consensus that has developed in relation to its interpretation” (Thibodeau, at para. 50). Having considered the text and context of the Montreal Convention along with its history and purpose, I turn now to the manner in which courts of other state parties have considered the Montreal Convention.
[51] As noted in the reasons of the Federal Court of Appeal, the European Court of Justice (“ECJ”) has considered the scope of Articles 19 and 29 in decisions addressing (and rejecting) challenges to the European Union’s standardized passenger compensation scheme on the basis that it conflicts with the Montreal Convention.
[52] In the first such decision, the ECJ characterized Article 19 as governing “individual” damage resulting from delay that is “inherent in the reason for travelling” and which requires “a case-by-case assessment of the extent of the damage caused” so as to provide “compensation granted subsequently on an individual basis” (International Air Transport Association v. Department for Transport, C-344/04, [2006] E.C.R. I-403 (Grand Chamber), at paras. 43-44). The ECJ further noted that Article 19 and the other provisions in Chapter III “lay down the conditions under which any actions for damages against air carriers may be brought by passengers who invoke damage sustained because of delay” (para. 42 (emphasis added)). Determining the nature of the damage sustained by a given passenger as a result of a flight delay implicates a case-by-case analysis. This is distinct from a standardized approach:Any delay in the carriage of passengers by air . . . may, generally speaking, cause two types of damage. First, excessive delay will cause damage that is almost identical for every passenger. . . . Second, passengers are liable to suffer individual damage, inherent in the reason for travelling, redress for which requires a case-by-case assessment of the extent of the damage caused and can consequently only be the subject of compensation granted subsequently on an individual basis.
It is clear from Articles 19, 22 and 29 of the Montreal Convention that they merely govern the conditions under which, after a flight has been delayed, the passengers concerned may bring actions for damages by way of redress on an individual basis, that is to say for compensation, from the carriers liable for damage resulting from that delay.
It does not follow from these provisions, or from any other provision of the Montreal Convention, that the authors of the Convention intended to shield those carriers from any other form of intervention, in particular action which could be envisaged by the public authorities to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts. [paras. 43-45] [53] The ECJ built on this decision in noting that compensation for the loss of time inherent in a delay that is “suffered identically by all passengers” falls outside the scope of Article 19 and is not subject to the exclusivity principle (Nelson v. Deutsche Lufthansa AG, C-581/10 and C-629/10, [2013] 1 C.M.L.R. 42 (p. 1191), at paras. 49-56).
[54] Courts in the United States have also considered the scope of the Montreal Convention and its predecessors. The United States Supreme Court, in an appeal addressing what was covered by the liability cap associated with “damage sustained” in international carriage, linked damages recoverable under the Warsaw Convention to “compensation for harm incurred” as determined by the domestic law of contracting parties (Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996), at p. 227). Three years later, in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999), at p. 175, the United States Supreme Court described the Warsaw Convention’s pre-emptive effect (as amended by Montreal Protocol No. 4 to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Protocol done at The Hague on 28 September 1955, 2145 U.N.T.S. 31) as “preclud[ing] passengers from bringing actions under local law when they cannot establish air carrier liability under the treaty” (emphasis added). The United States Supreme Court concluded that “the [Warsaw] Convention’s preemptive effect on local law extends no further than the Convention’s own substantive scope” (p. 172).
[55] And, in an appeal before the Second Circuit Court of Appeals considering whether a private suit for discrimination was precluded by the Warsaw Convention, Circuit Judge Sotomayor (as she then was) described the remedial system it created as one that is “designed to protect air carriers against catastrophic, crippling liability by establishing monetary caps on awards and restricting the types of claims that may be brought against carriers” (King v. American Airlines, Inc., 284 F.3d 352 (2002), at p. 357). She further noted that, while the discrimination claim was barred by the Warsaw Convention, the plaintiffs could avail themselves of “other remedies”, including filing “a complaint with the Secretary [of Transportation]” who, under United States law, “has the authority to address violations of [Federal Aviation Act, 49 U.S.C. § 41310(a)] provisions, including the power to file civil actions to enforce federal law” (p. 362).
[56] The appellants submit that the ECJ decisions addressed are “highly controversial” and “wrong and irreconcilable with Thibodeau” (A.F., heading of para. 60). They refer to academic articles criticizing the decisions, and submit that this Court should consider International Air Transport Association v. Department for Transport and its progeny as having no persuasive effect. While academic articles can provide useful insights and perspectives, they can only be persuasive, not binding (R. v. McGregor, 2023 SCC 4, at para. 102; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 274, per Abella and Karakatsanis JJ., concurring; see also R. v. Kirkpatrick, 2022 SCC 33, at para. 247).
[57] More importantly, there is no basis on which to disavow the reasoning in the ECJ or the American decisions. Rather, they help to illustrate the meaning of an “action for damages” and the scope of the Montreal Convention, and suggest a meaning that is consonant with the text, context and purpose considered above. These cases establish that an “action for damages” seeks to address individualized harm on a case-by-case basis. The term, within the context of the Montreal Convention, does not include standardized compensation that is owed identically to all passengers impacted by a given set of circumstances irrespective of the harm suffered. . International Air Transport Association v. Canada (Transportation Agency) [Vienna Convention]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
The court considers the Vienna Convention on the Law of Treaties, here on the interpretation of the Montreal Convention:(2) The Ordinary Meaning of the Words Chosen by the State Parties When Read in Their Context
[39] The Vienna Convention is the starting point for determining the scope of the Montreal Convention (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at paras. 51-52; Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at pp. 577-78). Article 31 of the Vienna Convention directs that the Montreal Convention, like all treaties, should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Or, as this Court has put it, “[t]he point of departure for interpreting a provision of a treaty is the plain meaning of the text” (Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at para. 16). The English text of Article 31 of the Vienna Convention refers to “ordinary meaning” and this Court in Febles referred to “plain meaning”, in the English version of its reasons. In French, both the text of the Vienna Convention and the Court’s reasons in Febles use the expression “sens ordinaire”. I take these expressions to mean the same thing, that being that the analysis begins with the words chosen by the state parties to the Montreal Convention.
[40] Article 29, in explaining the exclusivity principle, states that the Montreal Convention applies to “any action for damages, however founded” (Thibodeau, at para. 37 (emphasis in original)). The text of Article 29 thus discloses two criteria that guide the application of the exclusivity principle: there must be an “action” that leads to “damages”. The term “action” has a meaning well known to the law: Black’s Law Dictionary defines an “action” as “any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree” ((11th ed. 2019), at p. 37). Similarly, Barron’s Canadian Law Dictionary defines an “action at law” as “[a] judicial proceeding whereby one party . . . prosecutes another for a wrong or injury done [or] for damage caused” or “[a] proceeding by which one party seeks in a court of justice to enforce some right” ((7th ed. 2013), at p. 9). Recalling that the term “action” must be understood in “a broad sense”, I would add that it should be read in light of the growing prominence of non-judicial tribunals and quasi-judicial adjudicators in Canada and elsewhere (see Thibodeau, at para. 60). Thus, I do not foreclose the possibility that a proceeding that occurs outside a court of law may, if it shares the characteristics of a judicial proceeding, also fall within the ambit of an “action” for the purposes of Article 29. . International Air Transport Association v. Canada (Transportation Agency) [summary]
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
This is the court's summary of the case:[2] The appellants submit that, because the Regulations require that air carriers compensate passengers on international flights when their flights are delayed or cancelled, or when passengers are denied boarding or their baggage is lost or damaged, the Regulations conflict with the Montreal Convention’s exclusivity principle. In light of this purported conflict, and because the Montreal Convention has been implemented by way of the Carriage by Air Act, R.S.C. 1985, c. C-26 (“CAA”), the appellants assert that the Regulations are ultra vires the regulation-making authority given to the Canadian Transportation Agency (“Agency”) by the Canada Transportation Act, S.C. 1996, c. 10 (“CTA”). I will hereafter refer to the issue of whether the Regulations are within the jurisdiction of the Agency, as conferred by the CTA, as the Regulations being “ultra vires the CTA” or “intra vires the CTA”.
[3] The parties also disagree concerning the admissibility of expert affidavits on questions of international law; such affidavits were introduced in the proceedings below regarding state practice. The law relating to the admissibility of expert evidence, as I explain below, has been settled since this Court’s decision in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.
[4] This Court examined the scope of the exclusivity principle under the Montreal Convention in Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340 (“Thibodeau”), and in that case affirmed that the Montreal Convention is exclusive within the scope of the matters that it addresses, but that the Montreal Convention does not deal comprehensively with all aspects of international carriage by air (para. 47). The same conclusion guides the result in this case. The exclusivity principle in Article 29 of the Montreal Convention applies to any “action for damages”. However, the Regulations do not provide for an “action for damages” because they do not provide for individualized compensation. The entitlements provided for are not tied to harm suffered by the claimant as a result of injury caused by another. Rather, the Regulations create statutory entitlements as part of a consumer protection scheme that operates irrespective of the harm (if any) suffered by the claimant. Thus, the Regulations do not give rise to liability that is pre-empted by Article 29 and so do not conflict with the Montreal Convention as implemented by the CAA. Accordingly, the appeal is dismissed. . Ace Aviation Holding Inc. v. Holden
In Ace Aviation Holding Inc. v. Holden (Div Ct, 2008) the Divisional Court heard a lost luggage claim where a second person who had property in the checked passenger's luggage also sued for the value of their loss. The case is also interesting for it's involvement of the treaty that limits passenger baggage losses:[4] The rights and responsibilities of the Holdens and Air Canada relative to the Holdens' international flight to New York is governed by the Convention for the Unification of Certain Rules for International Carriage by Air ("the Montreal Convention, 1999") which is incorporated into the laws of Canada by the Carriage by Air Act, R.S.C. 1985, c. C-26 as amended.
[5] The relevant article for purposes of deciding the claim and this appeal is Article 22(2) of the Montreal Convention, 1999 which provides:In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger's actual interest in delivery at destination. [6] There is no dispute that the value of 1000 Special Drawing Rights was $1,776.49 at the time of loss. ....
....
[21] In my view, the proper construction of the word "passenger" in the context of Article 22(2) is the one which denotes an individual who is a passenger and who has checked the piece of baggage that is lost. That construction is consonant with the purposes of the Convention and results in all of the language of the Article having meaning and internal logic. It avoids the potential for exposure to an uncertain quantum of liability and exposure to an uncertain number of claimants. There is no prejudice to the passenger as he or she is at liberty to check his or her own bag and/or make the special declaration contemplated in the Article. Accordingly, I would allow the appeal and set aside the judgment in favour of William Holden in the amount of $1,776.49.
|
