Hamish Mills-McEwan

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.

The defendant brought a motion for production of documents from the minor plaintiff’s mother, a non-party, relating to the income of the deceased and allegations of sexual abuse.

The court found the documents relevant and necessary for the assessment of damages in a Family Law Act claim and ordered their production, rejecting arguments of prematurity and privacy.

The court also awarded costs to the defendant, with a reduction for issues abandoned or narrowed during the motion.

The Township of Greater Madawaska brought a motion to bifurcate the trial, seeking to separate the determination of an easement from the remaining issues, or alternatively, to separate liability from damages.

The court dismissed the motion, finding that bifurcation would not save time or costs, would prejudice the property owners, and that the issues were not clearly severable, particularly regarding punitive damages.

The court awarded partial indemnity costs to the property owners.

This appeal concerned a dispute over specific performance of a property transfer agreement between a son (respondent) and his father and stepmother (appellants).

The trial judge had dismissed the appellants' claim for specific performance, finding no uniqueness in the property and delay by the appellants.

The Court of Appeal allowed the appeal, finding that the trial judge erred by failing to consider the subjective uniqueness of the property as the appellants' established home and the unique nature of the transaction.

The Court also found no unreasonable delay by the appellants in seeking specific performance, as the respondent had repudiated the agreement.

Specific performance was ordered, along with an accounting of expenses and a reassessment of costs in favour of the appellants.

The plaintiffs brought actions against Ukraine International Airlines (UIA) under the Montreal Convention following the shoot-down of Flight PS752 by Iranian military surface-to-air missiles shortly after takeoff from Tehran.

UIA admitted the shoot-down was an 'accident' under the Convention, making it strictly liable, but sought to limit its liability by proving it was not negligent in allowing the flight to depart.

The Superior Court of Justice found that UIA failed to meet the standard of care for a reasonable airline operating in or near a conflict zone, as it did not conduct a proper security threat risk assessment or any safety risk assessment, and failed to gather available intelligence or brief the flight commander.

The court held that UIA failed to prove its negligence did not cause the passengers' deaths or that the harm was too remote, resulting in unlimited liability for the airline.

The court issued a costs endorsement following a determination of claims and counterclaims.

Applying principles of fairness, reasonableness, and access to justice, and considering Rule 57 factors, the court awarded partial indemnity costs to the defendants.

The court found the defendants' claimed hours and rates excessive compared to the plaintiff's counsel, fixing fees at $30,000 plus HST and disbursements at $3957.74, payable by the plaintiff to the defendants.

The plaintiff son brought an action to set aside an agreement to transfer his house to his defendant father and stepmother, claiming he signed it under duress.

The defendants counterclaimed for specific performance of the agreement.

The court found the plaintiff was not a credible witness and dismissed the claim of duress, holding the agreement was valid and enforceable.

However, the court declined to order specific performance, finding the property was not unique to the defendants and damages were an adequate remedy.

The defendants were awarded $48,384.72 in damages for loans, rent, and property expenses, and were ordered to vacate the premises within six months.

The plaintiff's insurer brought a motion to enforce a settlement agreement regarding its subrogated claim for property damage caused by the defendant's excavation.

The defendant had agreed to pay $400,000 to the insurer, but payment was deferred until a settlement with the named plaintiffs or the outcome of a liability trial.

The defendant subsequently settled with the named plaintiffs and obtained a release, effectively eliminating the liability trial.

The court held that the insurer had standing to enforce the agreement by motion in the main action and ordered the defendant to pay the $400,000 immediately, as the condition for payment had been met by the settlement with the named plaintiffs.

In a wrongful death action arising from a motorcycle accident, the defendants brought a motion under Rule 31.10 for production of the complete Children's Aid Society file regarding the plaintiffs.

The defendants sought the records to assess the quality of the relationship between the plaintiffs and the deceased.

The court dismissed the motion, finding that the defendants had not exhausted their right to obtain the information through examinations for discovery of the plaintiffs, rendering the request a speculative fishing expedition.