Clay S. Hunter

On January 8, 2020, Ukraine International Airlines flight PS752 was shot down by Iranian air defence missiles shortly after takeoff from Tehran, killing all 176 persons aboard.

The trial judge found that UIA breached the standard of care by failing to conduct a proper security risk assessment in accordance with ICAO 10084 (Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones).

Specifically, UIA failed to access necessary and available information, failed to conduct a hazard identification and safety assessment, and failed to communicate with the flight commander before departure.

As a result, UIA's liability under the Montreal Convention was unlimited rather than capped at approximately $235,000 per passenger.

The appellate court dismissed UIA's appeal, finding no palpable and overriding error in the trial judge's findings of fact or mixed fact and law.

Air carriers challenged federal regulations providing standardized compensation to passengers for flight delays, cancellations, denial of boarding, and lost or damaged baggage, arguing the regulations conflicted with the exclusivity principle in Article 29 of the Montreal Convention as implemented by the Carriage by Air Act and were therefore ultra vires the Canadian Transportation Agency's regulation-making authority under the Canada Transportation Act.

The Supreme Court held that the exclusivity principle applies only to 'actions for damages' that share the characteristics of judicial proceedings seeking individualized compensation tied to injury caused by another.

Because the impugned regulations create a consumer protection scheme providing standardized statutory entitlements irrespective of harm actually suffered, they do not constitute 'actions for damages' and do not fall within Article 29's scope.

The Court also clarified that the Mohan framework governs admissibility of expert evidence on questions of international law.

Appeal dismissed.

This decision concerns the approval of a class action settlement and associated legal fees and honoraria following an aircraft accident.

The class action arose from a November 9, 2018 incident where Fly Jamaica Flight OJ 256 made an emergency landing, resulting in substantial damage and passenger injuries.

After extensive negotiations, a $5,550,000.00 lump sum settlement was reached.

The court approved the settlement agreement, certified the action against newly added defendants for settlement purposes, approved class counsel's fees of 25% of the settlement amount plus disbursements, and approved a $5,000 honorarium for each representative plaintiff.

The court found the settlement to be within the range of reasonableness and the fees to be fair and reasonable.

The defendant airline brought a motion to strike the plaintiffs' claims under Rule 21.01, arguing the claims were governed exclusively by the Montreal Convention as damages for 'delay'.

The plaintiffs had been denied boarding on an international flight because the airline mistakenly alleged one plaintiff's passport was stolen.

The court denied the airline's request to file evidentiary documents, as they were not incorporated into the statement of claim.

The court dismissed the motion to strike, finding it was not plain and obvious that the plaintiffs' claims constituted 'delay' rather than 'non-performance' of the contract of carriage, which falls outside the Montreal Convention.

This decision concerns a motion to certify a class proceeding arising from the downing of Ukraine International Airlines Flight PS752.

The court granted certification of the action but made significant modifications to the proposed terms of the Certification Order, Notice of Certification, Litigation Plan, and Opt-out Form.

Key modifications included extending the opt-out period to align with the Montreal Convention limitation period, removing requirements for court approval for minors/incapable persons and estate representatives to opt out, and deleting a proposed anonymity provision.

The court also restricted the disclosure of telephone numbers for notice distribution.

The appellant insurance company appealed from a motion judge's order declaring that it had a duty to defend claims against the respondents arising from an accidental death caused by an all-terrain vehicle operated on the respondents' property containing a private airstrip.

The appellant argued the motion judge erred by going beyond the pleadings and speculating about coverage.

The Court of Appeal upheld the motion judge's decision, finding that the motion judge correctly applied the pleadings rule and gave the widest latitude to the allegations in determining whether they raised a claim within the policy.

The court affirmed that the duty to defend is broader than the duty to indemnify, requiring only the mere possibility that a claim falls within the insurance policy.

The defendants brought a motion to dismiss the plaintiff's motor vehicle accident claim for delay under Rule 24.01, and to set aside ex parte orders validating service.

The plaintiff's counsel had inadvertently marked the file as closed, resulting in a delay of over three years in advancing the action.

The court found that while the delay was intentional for a short period, it was not contumelious, inordinate, or inexcusable.

The court also declined to set aside the ex parte service orders, noting the defendants were aware of the action and suffered no actual prejudice.

The defendants' motion was dismissed.

The defendant airline brought a motion under Rules 21.01 and 25.11 of the Rules of Civil Procedure to strike the amended statement of claim on the basis that it disclosed no reasonable cause of action and was statute-barred.

The plaintiff alleged negligence after suffering a seizure at an airport which prevented him from boarding return flights during an international journey.

The court held that claims relating to international carriage by air are governed exclusively by the Montreal Convention as incorporated into Canadian law by the Carriage by Air Act.

Under Article 35 of the Convention, actions must be brought within two years, and this period extinguishes the right to damages rather than merely limiting the remedy.

Because the action was commenced more than two years after the relevant events, it was statute-barred and struck without leave to amend.

The respondents sued the appellant tour operator in Small Claims Court for a ruined vacation after experiencing unacceptable service at a resort in Cuba.

The Deputy Judge awarded damages, finding the appellant breached a duty to supervise its third-party supplier and could not rely on an exclusionary clause.

On appeal, the Superior Court of Justice set aside the judgment, holding that a tour operator's common law duty is limited to exercising due care in selecting a competent supplier, not supervising them.

The court also found the exclusionary clause was unambiguous and enforceable.