Supreme Court of Canada
Appeal Heard: March 25, 2024 Judgment Rendered: October 4, 2024 Docket: 40614
Parties
Between:
International Air Transport Association, Air Transportation Association of America doing business as Airlines for America, Deutsche Lufthansa AG, Air France, British Airways PLC, Air China Limited, All Nippon Airways Co., Ltd., Cathay Pacific Airways Limited, Swiss International Airlines Ltd., Qatar Airways Group Q.C.S.C., Air Canada, Porter Airlines Inc., American Airlines Inc., United Airlines Inc., Delta Air Lines Inc., Alaska Airlines Inc., Hawaiian Airlines, Inc. and Jetblue Airways Corporation Appellants
and
Canadian Transportation Agency and Attorney General of Canada Respondents
— and —
Gábor Lukács, Council of Canadians with Disabilities, National Pensioners Federation, Public Interest Advocacy Centre and Société québécoise de droit international Interveners
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 104)
Rowe J. (Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Indexed as: International Air Transport Association v. Canada (Transportation Agency)
2024 SCC 30
File No.: 40614.
2024: March 25; 2024: October 4.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.
on appeal from the federal court of appeal
Transportation law — Air transport — Passenger compensation — Federal transportation agency adopting regulations providing for minimum compensation to passengers on flights to and from Canada in case of delay, cancellation, denial of boarding and lost or damaged baggage — Provisions challenged by air carriers on basis that they conflict with exclusivity principle of international convention implemented in Canadian law governing damages liability of international air carriers — Whether impugned provisions of regulations ultra vires agency — Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309, Article 29 — Air Passenger Protection Regulations, SOR/2019-150.
Evidence — Admissibility — Expert evidence — International law — Airlines challenging regulations adopted by federal agency on basis of conflict with international convention implemented in Canadian law — Parties seeking to rely on expert affidavits on questions of international law — Framework governing admissibility of expert evidence in context of international law.
In 2018, the Canada Transportation Act ("CTA") was amended to allow the Canadian Transportation Agency ("Agency") to make regulations in relation to flights to and from Canada with respect to a number of areas. The Agency thereafter adopted the Air Passenger Protection Regulations ("Regulations"), which came into force in 2019. The Regulations include provisions dealing with standardized amounts of compensation for international flight delays, cancellations and denial of boarding when the disruption occurs for reasons within a carrier's control and is not required for safety purposes (ss. 12(2)(d), (3)(d) and (4)(d), 19 and 20), and refunds of baggage fees paid by passengers when the carrier has lost or damaged their baggage on international flights (s. 23).
In a statutory appeal to the Federal Court of Appeal, the International Air Transport Association, the Air Transportation Association of America, and several air carriers serving Canadian and international airports (collectively"airlines") challenged those provisions. The airlines alleged that the Regulations conflict with the exclusivity principle of the Convention for the Unification of Certain Rules for International Carriage by Air ("Montreal Convention") and are ultra vires the Agency's regulation-making authority under the CTA. Canada signed the Montreal Convention in 2001, and it was implemented into Canadian law by amendments to the Carriage by Air Act ("CAA"). Article 29 of the Montreal Convention codifies its exclusivity, by stating that "any action for damages" is subject to the conditions and limits of liability that it sets out.
The Federal Court of Appeal dismissed the challenge brought by the airlines, with the exception of the provisions relating to the temporary loss of baggage. The court considered the compatibility of the Regulations with the Montreal Convention, and held that the compensation provided for under the Regulations is not an action for damages, and that cancellation, denial of boarding, and delay are factual and legal concepts that do not fall within the scope of the exclusivity principle. The court also addressed the admissibility of expert affidavits on questions of international law.
Held: The appeal should be dismissed.
The Montreal Convention is exclusive within the scope of the matters that it addresses, but does not deal comprehensively with all aspects of international carriage by air. Pursuant to the text of its Article 29, there must be an "action" that leads to "damages" for the exclusivity principle to apply. The Regulations do not provide for an "action for damages" because they do not provide for individualized compensation; rather, they create a consumer protection scheme that operates in parallel with the Montreal Convention, without trenching on its liability limitation provisions. Accordingly, they do not fall within the scope of the Montreal Convention's exclusivity principle. Since the Regulations do not give rise to liability that is pre-empted by Article 29, they do not conflict with the Montreal Convention as implemented by the CAA and there is no basis to conclude that they exceed the jurisdiction of the Agency, as conferred by the CTA.
The Vienna Convention is the starting point for determining the scope of the Montreal Convention and the exclusivity principle. 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 light of its object and purpose. Therefore, the analysis begins with the words chosen by the state parties to the Montreal Convention. Article 29, in explaining the exclusivity principle, states that it applies to "any action for damages, however founded". The ordinary meaning of an "action for damages" points towards an action that shares the characteristics of a judicial proceeding and that seeks individualized compensation that is tied to an injury caused by another. Damages awards are individualized in that they seek to compensate the plaintiff for the loss suffered as a result of an injury caused by another. An action for damages is distinct from standardized compensation, which may be owed identically to all claimants irrespective of the harm (if any) they have suffered. The broader context of the Montreal Convention supports an understanding of the words "action" and "damages" consonant with their "ordinary meaning" in Canadian law: the relevant articles of the Montreal Convention are framed in a way that plainly envisages actions which share the characteristics of judicial proceedings in a court of law. The object and purpose of the Montreal Convention, including the history of its development, support this conclusion, as does foreign jurisprudence and state practice. Article 29 should therefore be understood as precluding actions for damages that share the characteristics of judicial proceedings in courts of law, and that seek individualized compensation for death or bodily injury, damage or loss of baggage and cargo, and for delay in international carriage.
The Regulations are best understood as providing for statutory entitlements under a consumer protection scheme. Passengers claiming under the Regulations need not show what harm, if any, they have suffered in order to claim compensation. The Regulations do not tie compensation to harm or inconvenience: they mandate compensation for delay, cancellation or denial of boarding based on the time by which a passenger's arrival at their ultimate destination is delayed, and compensation owed for lost or damaged baggage is tied to the baggage fees charged by the carrier, not to the harm. Unlike the Montreal Convention, the Regulations do not enable a carrier to avoid having to pay compensation otherwise due to a passenger by invoking a due diligence defence or pointing to contributory negligence. As long as the disruption in question occurred for a reason within the carrier's control and was not required for safety purposes, the compensation is fixed. Moreover, the Agency is empowered to extend a finding that compensation is owed to one passenger to other passengers similarly situated.
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. As the Montreal Convention has been implemented in Canadian law, the established test for statutory conflicts applies and there is no need to have regard to the presumption that Parliament legislates in conformity with international law. Because the Regulations do not provide for an action for damages, but instead create an entitlement to standardized compensation that does not seek to measure a passenger's actual loss, they fall outside the scope of Article 29 and do not conflict with the Montreal Convention. The two forms of passenger compensation envisaged by the Regulations and the Montreal Convention are capable of standing together. The bargain at the centre of the Montreal Convention remains undisturbed: passengers continue to enjoy certain evidentiary presumptions on proof of damage, while carriers remain shielded from unlimited liability arising from actions for damages related to claims for death or bodily injury, damage or loss of baggage and cargo, and for delay. In signing on to the Montreal Convention, there is no indication that Canada or any other state party agreed to forego its ability to provide for minimum standards of treatment for passengers within its jurisdiction.
Finally, clarification is needed as to the treatment of expert evidence on questions of international law. The test from R. v. Mohan, [1994] 2 S.C.R. 9, should be applied in the context of international law as it is in other circumstances where expert evidence is sought to be admitted. The appropriate framework is the following: where expert evidence satisfies Mohan's criteria, it may be considered. Otherwise, judges should proceed as they would for any other question of law — that is, on the basis of the submissions of the parties before the court and authorities on which they rely. In applying Mohan, the admissibility of expert evidence is within the court's discretion so long as the threshold requirements of admissibility are satisfied. Given the variety of contexts in which expert evidence is sought to be adduced on questions of international law, the admissibility of such evidence is best left as a matter of judicial discretion rather than being subject to a fixed and invariable rule.
Cases Cited
Applied: R. v. Mohan, [1994] 2 S.C.R. 9; considered: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; International Air Transport Association v. Department for Transport, C-344/04, [2006] E.C.R. I-403; Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999); King v. American Airlines, Inc., 284 F.3d 352 (2d Cir. 2002); Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402, 135 O.R. (3d) 561; referred to: Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Thibodeau v. Air Canada, 2011 FC 876, [2013] 2 F.C.R. 83; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Thomson v. Thomson, [1994] 3 S.C.R. 551; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Sullivan v. Old Colony St. Ry. Co., 83 N.E. 1091 (Mass. 1908); Nelson v. Deutsche Lufthansa AG, C-581/10 and C-629/10, [2013] 1 C.M.L.R. 42 (p. 1191); R. v. McGregor, 2023 SCC 4; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; R. v. Kirkpatrick, 2022 SCC 33; Yugraneft Corp. v. Rexx Management Corp., 2010 SCC 19, [2010] 1 S.C.R. 649; Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999, p. 1045; Hunt v. T&N plc, [1993] 4 S.C.R. 289; Nevsun Resources Ltd. v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166; Turp v. Canada (Foreign Affairs), 2018 FCA 133, [2019] 1 F.C.R. 198; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Holding Tusculum B.V. v. S.A. Louis Dreyfus & Cie, 2006 QCCS 2827; Fédération des travailleurs du Québec (FTQ - Construction) v. Procureure générale du Québec, 2018 QCCS 4548; R. v. Abbey, [1982] 2 S.C.R. 24; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387; Clayson-Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1; R. v. Abdullahi, 2021 ONCA 82, 399 C.C.C. (3d) 397; Quebec (Attorney General) v. Canada, 2008 FC 713, 359 F.T.R. 1, aff'd 2009 FCA 361, 400 N.R. 323, aff'd 2011 SCC 11, [2011] 1 S.C.R. 368; Surrey Credit Union v. Willson (1990), 45 B.C.L.R. (2d) 310; Daniels v. White, [1968] S.C.R. 517; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Boland v. APV Canada Inc. (2005), 250 D.L.R. (4th) 376.
Statutes and Regulations Cited
Act to amend the Carriage by Air Act, S.C. 2001, c. 31.
Air Transportation Regulations, SOR/88-58, ss. 113.1, 122(c)(xxi).
Carriage by Air Act, R.S.C. 1985, c. C-26, Sch. VI.
Direction Respecting Tarmac Delays of Three Hours or Less, SOR/2019-110.
Federal Courts Rules, SOR/98-106, r. 369.
Transportation Modernization Act, S.C. 2018, c. 10.
Treaties and Other International Instruments
Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309 [Montreal Convention], preamble, Arts. 1, 17 to 19, 20, 21, 22, 26, 27, 29, 33(1), 35(2).
Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, Arts. 31, 32.
Authors Cited
Black's Law Dictionary, 11th ed., by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2019"action""damages".
Canada. Library of Parliament. Parliamentary Information, Education and Research Services. Canada's Approach to the Treaty-Making Process, Hill Studies 2008-45-E, by Laura Barnett, Legal and Social Affairs Division, April 1, 2021.
Canadian Law Dictionary, 7th ed., by Steve Coughlan, John A. Yogis and Catherine Cotter. New York: Barron's Educational Series, 2013"action at law""damages".
Currie, John H., et al. International Law: Doctrine, Practice, and Theory, 3rd ed. Toronto: Irwin Law, 2022.
Dempsey, Paul Stephen. Aviation Liability Law, 2nd ed. Markham, Ont.: LexisNexis, 2013.
International Civil Aviation Organization. International Conference on Air Law, vol. I, Minutes, Doc. 9775-DC/2. Montréal, 2001.
van Ert, Gib. Recent Federal Courts decisions on expert evidence of international law, December 31, 2018 (archived version).
van Ert, Gib. Using International Law in Canadian Courts, 2nd ed. Toronto: Irwin Law, 2008.
van Ert, Gibran. "The Admissibility of International Legal Evidence" (2005), 84 Can. Bar Rev. 31.
APPEAL from a judgment of the Federal Court of Appeal (Pelletier, de Montigny and Locke JJ.A.), 2022 FCA 211, [2022] F.C.J. No. 1702 (Lexis), 2022 CarswellNat 5115 (WL), dismissing in part a challenge to the validity of regulations adopted by the Canadian Transportation Agency. Appeal dismissed.
Pierre Bienvenu, Clay Hunter, Virginie Blanchette-Séguin, Jean-Simon Schoenholz and Jiwan Son, for the appellants.
Barbara Cuber, for the respondent the Canadian Transportation Agency.
Bernard Letarte and Lindy Rouillard-Labbé, for the respondent the Attorney General of Canada.
Gábor Lukács, on his own behalf.
Katrine Dilay and Marina Pavlovic, for the interveners the Council of Canadians with Disabilities, the National Pensioners Federation and the Public Interest Advocacy Centre.
Charles-Emmanuel Côté and Bruno Gélinas-Faucher, for the intervener Société québécoise de droit international.
Reasons for Judgment
The judgment of the Court was delivered by
TABLE OF CONTENTS
| Section | Paragraph |
|---|---|
| I. Facts | 5 |
| A. The Parties | 5 |
| B. The Montreal Convention Under Canadian Law | 8 |
| C. The Development and Content of the Regulations | 10 |
| II. Federal Court of Appeal, 2022 FCA 211 (de Montigny J.A., Pelletier and Locke JJ.A. Concurring) | 13 |
| III. Issues | 21 |
| IV. Standard of Review | 25 |
| V. Analysis | 27 |
| A. What Is the Scope of the Montreal Convention and the Exclusivity Principle? | 33 |
| (1) Thibodeau Does Not Resolve the Question | 36 |
| (2) The Ordinary Meaning of the Words Chosen by the State Parties When Read in Their Context | 39 |
| (3) The Object and Purpose of the Montreal Convention | 46 |
| (4) Foreign Jurisprudence | 50 |
| (5) Consideration of State Practice | 58 |
| (6) The Exclusivity Principle Precludes Actions for Individualized Damages | 63 |
| B. The Test for Expert Evidence on Questions of International Law | 65 |
| (1) Mohan Governs Expert Evidence on Questions of International Law | 70 |
| C. What Is the Scope of the Regulations? | 80 |
| (1) Compensation | 81 |
| (2) Enforcement | 86 |
| (3) The Regulations Operate as a Consumer Protection Scheme | 89 |
| D. The Regulations Do Not Conflict With the Montreal Convention and Thus Are Not Ultra Vires the CTA | 91 |
| (1) What Constitutes a Conflict? | 92 |
| (2) The Regulations Do Not Provide for an "Action for Damages" and, as a Consequence, There Is No Conflict | 94 |
| E. It Is Unnecessary To Deal With Alternative Arguments in Favour of Validity of the Regulations | 100 |
| VI. Conclusion and Disposition | 103 |
I. Facts
A. The Parties
1This appeal addresses the vires of the Air Passenger Protection Regulations, SOR/2019-150 ("Regulations"), 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, 2242 U.N.T.S. 309 ("Montreal Convention").
2The 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".
3The 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] 2 S.C.R. 9.
4This 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.
A. The Parties
5The appellant International Air Transport Association ("IATA") is a trade association whose members include 290 airlines from 120 countries, which carry approximately 82 percent of the world's air traffic. The appellant Air Transportation Association of America (doing business as Airlines for America) is a trade association which brings together passenger and cargo airlines based in the United States. The remaining 16 appellants are air carriers serving Canadian and international airports.
6The respondent Agency is a quasi-judicial tribunal and an economic regulator with a mandate to deal with transportation matters under Parliament's legislative authority, including aviation. The Agency performs two functions. First, it applies rules that establish rights and responsibilities of transportation service providers and users and that level the playing field among competitors. As part of its regulatory function, the Agency makes determinations as to the issuance of licences and permits. It is empowered to enforce, through administrative monetary penalties, the CTA and regulations made thereunder. Second, it adjudicates commercial and consumer transportation-related disputes and accessibility issues.
7This Court in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, described the CTA as "highly specialized regulatory legislation with a strong policy focus" (para. 98) and the Agency as "responsible for interpreting its own legislation, including what that statutory responsibility includes" (para. 100).
B. The Montreal Convention Under Canadian Law
8As this Court explained in Thibodeau (at para. 47), the Montreal Convention, like its predecessor, the Convention for the Unification of Certain Rules Relating to International Carriage by Air, 137 L.N.T.S. 11 ("Warsaw Convention"), was designed to achieve a number of objectives, including but not limited to the following:
. . . achieve a uniform set of rules governing damages liability of international air carriers and to provide limitation of carrier liability. These purposes can only be achieved by the Montreal Convention if it provides the exclusive set of rules in relation to the matters that it covers. The Montreal Convention of course does not deal with all aspects of international carriage by air: it is not comprehensive. But within the scope of the matters which it does address, it is exclusive in that it bars resort to other bases for liability in those areas: M. Clarke, Contracts of Carriage by Air (2nd ed. 2010), at pp. 8 and 160-62; G. N. Tompkins, Jr."The Continuing Development of Montreal Convention 1999 Jurisprudence" (2010), 35 Air & Space L. 433, at pp. 433-36.
I return to the purpose of the Montreal Convention and the role of the exclusivity principle referenced in Thibodeau later in these reasons. For now, it suffices to note that this Court has recognized three central objectives of the Montreal Convention: first, it limits carrier liability related to claims for damages for death or bodily injury, damage to or loss of baggage and cargo, and for delay; second, it protects the interests of passengers and shippers by creating presumptive liability for carriers with respect to those claims; and third, it seeks "to create uniform rules governing claims arising from international air transportation" (paras. 41-42 and 44-46).
9Canada signed the Montreal Convention on October 1, 2001, and deposited its instrument of ratification on November 19, 2002. The Montreal Convention was implemented into Canadian law by amendments to the CAA (An Act to amend the Carriage by Air Act, S.C. 2001, c. 31); these incorporated the Montreal Convention in its entirety by reference (CAA, Sch. VI; Library of Parliament, Canada's Approach to the Treaty-Making Process, Hill Studies 2008-45-E, April 1, 2021, at pp. 2-5).
C. The Development and Content of the Regulations
10In 2014, the Minister of Transport ("Minister") launched a review of the CTA. Following this review, Parliament enacted the Transportation Modernization Act, S.C. 2018, c. 10, in 2018; this amended the CTA to add s. 86.11, which stated that "[t]he Agency shall, after consulting with the Minister, make regulations in relation to flights to, from and within Canada, including connecting flights" with respect to a number of areas, notably including carriers' obligations in case of flight delay, flight cancellation or denial of boarding, and lost and damaged baggage. The Agency published draft regulations thereafter; these came into force in 2019.
11As mandated by the addition of s. 86.11 to the CTA, the Regulations establish minimum air carrier obligations towards passengers when flights are delayed, cancelled, when a passenger is denied boarding, or when baggage is lost or damaged. This appeal concerns the provisions of the Regulations dealing with:
(a) standardized amounts of compensation for international flight delays, cancellations and denial of boarding when the disruption occurs for reasons within a carrier's control and is not required for safety purposes (ss. 12(2)(d), (3)(d) and (4)(d), 19 and 20); and
(b) refunds of baggage fees paid by passengers when the carrier has lost or damaged their baggage on international flights (s. 23).
12The Regulations also establish air carrier obligations to passengers with respect to other topics not at issue in this appeal including: tarmac delays, seating assignment of children, and the transportation of musical instruments.
II. Federal Court of Appeal, 2022 FCA 211 (de Montigny J.A., Pelletier and Locke JJ.A. Concurring)
13The appellants brought their challenge to the Regulations in a statutory appeal to the Federal Court of Appeal, which hears appeals from decisions of the Canadian Transportation Agency on questions of law or jurisdiction, per s. 41 of the CTA.
14Preliminary motions addressed the admissibility of expert evidence. First, the Attorney General of Canada sought leave to present expert evidence on the state practice with respect to air passenger rights under the Montreal Convention. Justice Rennie granted the motion and both parties submitted affidavits by experts (No. A-311-19, January 27, 2020, reproduced in A.R., vol. I, at p. 139).
III. Issues
IV. Standard of Review
V. Analysis
A. What Is the Scope of the Montreal Convention and the Exclusivity Principle?
(1) Thibodeau Does Not Resolve the Question
(2) The Ordinary Meaning of the Words Chosen by the State Parties When Read in Their Context
(3) The Object and Purpose of the Montreal Convention
49From the foregoing, I draw two conclusions relevant to understanding the scope of Article 29. First, the textual focus of the Montreal Convention on actions with the characteristics of judicial proceedings that seek to vindicate individualized claims for damages related to death or bodily injury, damage or loss of baggage and cargo, and for delay is consonant with the history of the Montreal Convention and predecessor agreements. Efforts over time to find a balance between limitations on carrier liability and the interests of passengers led the state parties and airline industry stakeholders to the approach set out in the Montreal Convention. Second, the state parties to the Montreal Convention framed the exclusivity principle so as to ensure that such claims could proceed only within the framework provided for therein. This ensured that the compromise struck in the Montreal Convention could not be undercut by recourse to actions for damages under local law.
(4) Foreign Jurisprudence
(5) Consideration of State Practice
(6) The Exclusivity Principle Precludes Actions for Individualized Damages
B. The Test for Expert Evidence on Questions of International Law
(1) Mohan Governs Expert Evidence on Questions of International Law
73As with areas of the law such as those noted above, from time to time difficult and contentious questions of international law will arise where judges will be assisted in carrying out their functions by appropriate expert evidence. Questions of conventional international law may require judges to have regard to questions of fact that are susceptible to expert evidence including, inter alia, foreign law (in applying a treaty, for example), state practice in a treaty's application, or the authentic text of a treaty in a foreign language (see G. van Ert, Using International Law in Canadian Courts (2nd ed. 2008), at pp. 57 and 63). Similarly, in the context of customary international law"alleged customs may be contested and require proof" (p. 67). Mohan is sufficiently flexible to enable courts to admit expert evidence on such questions, where it is needed for a court to carry out its functions.
74To summarize, then, the appropriate framework is the following. Where expert evidence satisfies Mohan's criteria, it may be considered. Otherwise, judges should proceed as they would for any other question of law — that is, on the basis of the submissions of the parties before the court and authorities on which they rely.
75This Court on various occasions has considered the meaning of treaties without recourse to expert evidence, including in Thibodeau and Yugraneft Corp. Looking to the principles of treaty interpretation codified in the Vienna Convention, and undertaking an examination of the text, object, and purpose of a treaty, is within the capacity of Canadian courts.
76In Suresh, this Court considered the peremptory norm of international law regarding the prohibition of torture; this required the Court to have regard to international conventions which Canada has ratified and to jus cogens norms of international law. The Court had recourse to academic texts, foreign jurisprudence, as well as the submissions of parties and interveners. These sources sufficed for the Court to consider the status of the prohibition against torture as a matter of international law.
77Though the Court did not rely on Mohan in these cases, its approach to dealing with questions of international law without recourse to expert evidence is consistent with Mohan's suggestion that "[i]f on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary" (p. 24).
78Finally, I note that evidence law jurisprudence establishes a number of cautionary rules that apply with equal force in the context of expert evidence sought to be admitted regarding international law. First, as noted in Quebec (Attorney General) v. Canada, 2008 FC 713, 359 F.T.R. 1, aff'd 2009 FCA 361, 400 N.R. 323, aff'd 2011 SCC 11, [2011] 1 S.C.R. 368, the role of an expert is "only to assist the court in assessing complex and technical facts. It must never be forgotten that, ultimately, it is the court that must decide questions of law" (para. 161). Furthermore"[e]xpert opinions will be rendered inadmissible when they are nothing more than the reworking of the argument of counsel participating in the case" (Surrey Credit Union v. Willson (1990), 45 B.C.L.R. (2d) 310 (S.C.), at p. 315).
79In applying Mohan, the admissibility of expert evidence is within the court's discretion so long as the threshold requirements of admissibility are satisfied. Given the variety of contexts in which expert evidence is sought to be adduced on questions of international law, the admissibility of such evidence is best left as a matter of judicial discretion rather than being subject to a fixed and invariable rule.
C. What Is the Scope of the Regulations?
80I now turn to the Regulations, the manner in which they are enforced and the compensation that they provide for passengers who are affected by a delay, cancellation, denial of boarding, or damage or loss of baggage.
(1) Compensation
81Under the Regulations, a carrier must pay compensation to a passenger when the carrier cancels or delays a flight for reasons within its control and notifies the passenger 14 days or less before the flight, except if the cancellation or delay is required for safety purposes (ss. 11 and 12(2)(d) and (3)(d)). Compensation must also be paid when a passenger is denied boarding for reasons within the carrier's control, unless required for safety (s. 12(4)(d)).
82Sections 19 and 20 of the Regulations set out the amount of compensation payable in the event of delay, cancellation or denial of boarding. The amount of compensation is calculated, in the case of delay or cancellation, by reference to the size of the carrier and the time by which the passenger's arrival at the intended destination is delayed (s. 19(1)). For denial of boarding, compensation is calculated by reference to the time by which the passenger's arrival at the intended destination is delayed.
83Passengers are also entitled to compensation for lost or damaged baggage. In those instances, the Regulations stipulate that the passenger is to be paid the compensation they would be owed under the Montreal Convention, in addition to a refund of their baggage fees (s. 23(1)).
84So, although the Regulations purport to address "compensation for inconvenience" (see ss. 12(2)(d), (3)(d) and (4)(d) and 21), the compensation is not contingent on inconvenience per se, as ss. 19 and 20 do not have regard to individualized harm or inconvenience. For example, a passenger whose flight is delayed and who uses the opportunity to visit a relative during the layover enjoys the same entitlement to compensation under the Regulations as does a fellow passenger for whom the delay occasioned considerable inconvenience.
85The Regulations do not provide for compensation that is individualized in the manner of a damage award. The compensation for delay, cancellation, denial of boarding or loss or damage to baggage is not contingent "on proof of damage", is not linked to a showing of "damage sustained" or "occasioned by delay" to the claimant, and does not vary depending on the extent of the harm (if any) that results from wrongdoing by the carrier. The fact that the compensation owed under the Regulations may vary depending on whether it relates to a cancellation, delay, or denial of boarding, the amount of time that a passenger was delayed, and the size of the carrier does not change the standardized nature of the compensation, which addresses conditions experienced "identically by all passengers" (Nelson, at para. 52).
(2) Enforcement
86The obligations imposed on carriers by the Regulations "are deemed to form part of the terms and conditions set out in the carrier's tariffs in so far as the carrier's tariffs do not provide more advantageous terms and conditions of carriage than those obligations" (CTA, s. 86.11(4)). When the Regulations were promulgated, the Air Transportation Regulations, SOR/88-58 ("ATR"), were also amended to require carriers to incorporate the Regulations into tariffs applicable to international carriage (s. 122(c)(xxi)). In this manner, the obligations with respect to compensation set out in the Regulations become part of the carrier's conditions of carriage.
87If a carrier fails to compensate a passenger in accordance with the Regulations, the passenger can file a complaint with the Agency (CTA, ss. 85.04(1)(a) and (c) and 86.11(4)). A complaint resolution officer first attempts to resolve the complaint through mediation (s. 85.05(1)). If unsuccessful, the officer will adjudicate the matter (s. 85.06). If the officer finds that a carrier has not applied the terms and conditions of carriage set out in its tariff (including the Regulations), that officer can order the carrier to apply the relevant terms and conditions, including by paying the amount set out in the Regulations (ATR, s. 113.1; CTA, s. 85.07(1) and (3)). Complaint resolution officers can also consider prior decisions regarding whether a flight delay, cancellation or denial of boarding was within a carrier's control (CTA, ss. 85.08 and 85.14). The CTA (s. 86(1)(h)(iii.1)) further enables the Agency to make applicable to some or all passengers on the same flight a decision respecting a complaint in the case of flight delay, cancellation, or denial of boarding. In addition to addressing passenger complaints, the Agency can also enforce the Regulations by imposing administrative monetary penalties not exceeding $5,000 (in the case of an individual) or $250,000 (in the case of a corporation) (s. 177(1)).
88Read together, these provisions of the CTA and the Regulations enable the Agency to enforce carrier compliance with the compensation provided for in the Regulations, and to extend compensation owed to one passenger to others who are impacted by the same disruption.
(3) The Regulations Operate as a Consumer Protection Scheme
89The Attorney General and the Agency submit that the Regulations mark an evolution in the government's approach away from a "piecemeal" system that relied on carrier-led tariff development towards one that ensures predictable payments to passengers who are inconvenienced during carriage by air to, from or within Canada. The Regulations were put in place, following a review of the CTA, with a view to correcting an "'acute imbalance in market power' between air passengers and air carriers, and the 'unusual situation' where Canadian air passengers had to rely on foreign customer protection measures when traveling abroad" (R.F., Attorney General, at para. 11). Parliament responded to this situation by directing the Agency to put in place a system of standardized compensation.
90The Regulations are, thus, best understood as providing for statutory entitlements under a consumer protection scheme. Passengers claiming under the Regulations need not show what harm, if any, they have suffered in order to claim compensation. The Regulations do not tie compensation to harm and inconvenience; rather they mandate compensation for delay, cancellation or denial of boarding based on the time by which a passenger's arrival at their ultimate destination is delayed. Unlike the Montreal Convention, the Regulations do not enable a carrier to avoid having to pay compensation otherwise due to a passenger by invoking a due diligence defence or pointing to contributory negligence. As long as the disruption in question occurred for a reason within the carrier's control and was not required for safety purposes, the compensation is fixed. Moreover, the Agency is empowered to extend a finding that compensation is owed to one passenger to other passengers similarly situated. Compensation owed under the Regulations for lost or damaged baggage is tied to the baggage fees charged by the carrier, not to the harm. The Regulations are enforced by Agency-designated complaint resolution officers whose primary adjudicative duty consists of ensuring that carriers adhere to terms set in their tariffs.
D. The Regulations Do Not Conflict With the Montreal Convention and Thus Are Not Ultra Vires the CTA
91I 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?
92In 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] S.C.R. 517, at p. 526).
93The 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.
(2) The Regulations Do Not Provide for an "Action for Damages" and, as a Consequence, There Is No Conflict
94Because the Regulations do not provide for an action for damages, but instead create an entitlement to standardized compensation that does not seek to measure a passenger's loss, they fall outside the scope of Article 29 and do not conflict with the Montreal Convention. The two forms of passenger compensation envisaged by the Regulations and the Montreal Convention are capable of "standing together". The bargain at the centre of the Montreal Convention remains undisturbed. In actions for damages, passengers continue to enjoy certain evidentiary presumptions "on proof of damage" (Thibodeau, at para. 42) which address "the need for equitable compensation based on the principle of restitution" (Montreal Convention, preamble). Carriers remain shielded from unlimited liability arising from actions for damages related to claims for death or bodily injury, damage or loss of baggage and cargo, and for delay.
95It is helpful to look beyond the context of the Montreal Convention to other instances in which courts have considered whether a statutory entitlement is an award of damages. In Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402, 135 O.R. (3d) 561, the Court of Appeal dealt with whether a plaintiff was entitled to statutory entitlements (termination and severance pay) under the Employment Standards Act, 2000, S.O. 2000, c. 41, in addition to damages, or whether this would result in double recovery. In concluding that the compensation owed under the Employment Standards Act was not an award of damages and there was no double recovery, the court characterized the compensation payable under the Employment Standards Act as "minimum entitlements" that "are not linked to any actual loss suffered by the employee, but are payable in any event" (para. 116, quoting Boland v. APV Canada Inc. (2005), 250 D.L.R. (4th) 376 (Ont. Div. Ct.), at para. 22). The entitlements could be contrasted with damages in the employment context, which seek to correct the loss suffered by a plaintiff through monetary compensation, having regard to factors such as "the age of the employee, the likely length of time to find another position, the actual finding of another position etc." (para. 117, quoting Boland, at para. 23). Concluding that no conflict exists between the statutory entitlements provided for under the Regulations and the damages limitations under the Montreal Convention is consistent with the approach in Brake and a correct interpretation of the Regulations.
96The appellants raise two further arguments with respect to the purported incompatibility of the Regulations with the Montreal Convention, neither of which changes the outcome. First, they submit that the compensation provided for under the Regulations amounts to "non-compensatory damages" under the meaning of Article 29. This argument does not get off the ground. The meaning of "damages" examined above also applies to preclude a finding that the compensation provided for by the Regulations amounts to "non-compensatory damages". Furthermore, the text of Article 29 places "non-compensatory damages" alongside "punitive" and "exemplary" damages deriving from "any such action", i.e., any such "action for damages". This construction establishes that the non-compensatory damages in question are a subset of the damages precluded by Article 29's exclusivity principle and not a standalone category. I therefore do not accept that this wording in Article 29 serves to broaden the exclusivity principle.
97Second, the appellants submit that, because claims for compensation under the Regulations can be vindicated in court, the Regulations do in fact give rise to "actions for damages" despite the primacy of the administrative enforcement mechanism under the CTA. But the fact that claims payable pursuant to the Regulations can be vindicated by way of an action in court does not change the nature of the compensation or the Regulations themselves. The Regulations make no provision for claims to be filed in court. And even assuming, without deciding, that judicial proceedings that seek to vindicate a claim under the Regulations amount to an "action" for the purposes of the Montreal Convention, the claim would not be for "damages". Where such claims are filed in courts of law, the claim is not in the nature of one for damages, because the claim is not tied to any harm suffered by the claimant and does not require any "case-by-case assessment" or relate to "compensation for harm incurred" (International Air Transport Association v. Department for Transport, at para. 43; Zicherman, at p. 227). Instead, the claim is for payment of an amount that is already owed as a matter of standardized entitlements provided for under a consumer protection scheme.
98The Regulations impose additional costs on carriers by incorporating certain terms in their tariffs, but these costs are simply a condition of licensure for domestic and international carriers to access the Canadian air carriage market. In signing on to the Convention and the "protective reconciliation" between the interests of passengers and carriers that it engendered (Thibodeau, at para. 153, per Abella J., dissenting), there is no indication that Canada (or any other state party) agreed to forego its ability to provide for minimum standards of treatment for passengers within its jurisdiction.
99This conclusion is consistent with this Court's holding, in Thibodeau, that the Convention is "not comprehensive" but is exclusive "in relation to the matters that it covers", those being "rules governing damages liability of international air carriers" (para. 47). In the absence of any conflict between the Montreal Convention (as implemented by the CAA) and the Regulations, there is no basis to find that the Regulations are ultra vires the CTA.
E. It Is Unnecessary To Deal With Alternative Arguments in Favour of Validity of the Regulations
100The respondents raise two alternative arguments in favour of the validity of the Regulations. First, they argue that the Regulations are intra vires the CTA because the Montreal Convention does not address cancellation and denial of boarding and therefore does not preclude compensation relating to these sorts of travel disruptions.
101Second, the respondents submit that, even if the Regulations are inconsistent with the Montreal Convention, they reflect Parliament's clear intent and, as such, s. 86.11 of the CTA overrides any conflicting provision of the Montreal Convention.
102In light of my conclusion above that none of the impugned Regulations provisions provide for an "action for damages", it is unnecessary to address these alternative arguments.
VI. Conclusion and Disposition
103The appellants urge this Court to conclude that the exclusivity principle codified in Article 29 prevents Canada from putting in place an air passenger protection scheme through statutory entitlements. For the reasons outlined above, I disagree.
104The appeal is dismissed. Costs will go to the Attorney General of Canada. The Agency did not seek costs and, accordingly, no costs are awarded to the Agency.
Appeal dismissed with costs.
Solicitors for the appellants: IMK, Montréal; Paterson MacDougall, Toronto; Norton Rose Fulbright Canada, Montréal.
Solicitor for the respondent the Canadian Transportation Agency: Canadian Transportation Agency — Legal Services Directorate, Gatineau.
Solicitor for the respondent the Attorney General of Canada: Department of Justice Canada, Quebec Regional Office, Ottawa.
Solicitor for the intervener Gábor Lukács: Gábor Lukács, Halifax.
Solicitor for the interveners the Council of Canadians with Disabilities, the National Pensioners Federation and the Public Interest Advocacy Centre: Public Interest Law Centre, Winnipeg; University of Ottawa, Ottawa.
Solicitor for the intervener Société québécoise de droit international: Société québécoise de droit international, Montréal.
Footnotes
- The Attorney General notes that minutes from the International Conference on Air Law in Montréal in May 1999 suggest that the focus for the drafters of Article 29 was on "the types of actions which could be brought before the Courts" and on ensuring that it would not be "possible to circumvent [the Montreal Convention's] provisions by bringing an action for damages in the carriage of passengers, baggage and cargo in contract or in tort or otherwise" (International Civil Aviation Organization, International Conference on Air Law, vol. I, Minutes, Doc. 9775-DC/2 (2001), at p. 235).
