Gontcharov v. Canjet et al. [Indexed as: Gontcharov v. Canjet]
111 O.R. (3d) 135
2012 ONSC 2279
Ontario Superior Court of Justice,
J. Wilson J.
June 4, 2012
Carriers -- Carriage by air -- Liability -- Plaintiff bringing action for mental distress allegedly suffered when he was denied a blanket during flight and was detained by police upon disembarking -- Plaintiff also alleging that he suffered severe bronchitis as result of denial of blanket -- Defendants' motion to dismiss claim as disclosing no cause of action granted in part -- Article 17 of Convention applying -- Plaintiff experiencing accident during flight and disembarkation giving rise to claim for bodily injury of severe bronchitis -- Plaintiff permitted to pursue that claim -- Claims for mental distress and for punitive and exemplary damages struck out -- Montreal Convention, art. 17.
The plaintiff claimed that flight attendants refused his request for a blanket and reported him to the police. He was escorted off the aircraft by police officers and detained for three hours before being released with an apology. He sued for general, aggravated and punitive damages for infliction of mental distress, forcible confinement and false imprisonment. He also claimed damages for bronchitis arising from the incident. The defendants brought a motion to dismiss the claim as disclosing no cause of action. They argued that the claim was precluded by the Warsaw Convention of 1929 and the Montreal Convention of 1999 (the "Convention"), incorporated in the Carriage by Air Act, R.S.C. 1985, c. C-26.
Held, the motion should be granted in part.
Article 17 of the Convention provides that "[t]he carrier is liable for damages sustained in case of death or bodily injury of a passenger upon condition that the accident which caused death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking." In this case, the pleaded injury began while the plaintiff was on board the aircraft, continued during disembarkation and ended with his detention by the police. The injury-causing incident occurred "on board the aircraft" and "in the course of... disembarking". "Accident" in the Convention is a term of art and should be interpreted broadly to include intentional acts of wrongdoing. An act or omission by a flight attendant that is part of the chain of causation of injury to or death of a passenger has been interpreted to be an accident within the meaning of art. 17. The defendants conceded that the plaintiff experienced an accident during the flight and disembarkation giving rise to a claim for the bodily injury of alleged severe bronchitis. The plaintiff was permitted to pursue that claim. The plaintiff's claim for damages for psychological harm and mental distress could not succeed, as art. 29 of the Convention makes it clear that those damages are not recoverable. Quite apart from art. 29, the Canadian and international case law interpreting the intended scope of the Convention makes it clear that damages for psychological harm, without accompanying bodily injury, are not recoverable under the Convention. All aspects of the plaintiff's claim for damages for psychological harm, including the claim for punitive and exemplary damages, should be struck. [page136]
MOTION to dismiss an action.
Cases referred toAcevedo v. Iberia, 449 F.3d 7 (1st Cir. Puerto Rico, 2006); De Aviacion v. Herrera, 763 So. 2d 499, 25 Fla. L Weekly D 1695 (3rd Dist. 2000); Jaoude v. KLM Royal Dutch Airlines, 2005 WL 1949545 (S.D. Tex.); Schroeder v. Lufthansa German Airlines, 875 F.2d 613 (7th Cir. 1989), distd Balani v. Lufthansa German Airlines Corp., [2010] O.J. No. 4719, 2010 ONSC 3003 (S.C.J.) ; Eid v. Alaska Airlines Inc., 621 F.3d 858 (9th Cir. 2010); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 119 S. Ct. 662, 142 L. Ed. 2d 576 (1999); Naval-Torres v. Northwest Airlines Inc., 1998 14916 (ON SC), [1998] O.J. No. 1717, 159 D.L.R. (4th) 67, 60 O.T.C. 193, 21 C.P.C. (4th) 67, 79 A.C.W.S. (3d) 7 (Gen. Div.); Olympic Airways v. Husain, 540 U.S. 644, 124 S. Ct. 1221, 157 L. Ed. 2d 1146 (2004); Plourde v. Service aérien FBO inc (Skyservice), [2007] Q.J. No. 5307, 2007 QCCA 739, J.E. 2007-1150, EYB 2007-120036, 165 A.C.W.S. (3d) 969; Sidhu v. British Airways Plc; Abnett v. British Airways Plc, [1997] 1 All E.R. 193, [1997] A.C. 430 (H.L.), consd Other cases referred to Ace Aviation Holdings Inc. v. Holden, [2008] O.J. No. 3134, 296 D.L.R. (4th) 233, 240 O.A.C. 184, 2008 40223, 168 A.C.W.S. (3d) 234 (Div. Ct.); Air France v. Saks, 470 U.S. 392, 105 S. Ct. 1338, 84 L. Ed. 2d 289 (1985); Ashad v. Deutsche Lufthansa Aktiengesllschaft (c.o.b. Lufthansa German Airlines), [2009] O.J. No. 4979, 2009 64820 (S.C.J.) ; Chau v. Delta Air Lines Inc. (2003), 67 O.R. (3d) 108, [2003] O.J. No. 4885, [2003] O.T.C. 945, 126 A.C.W.S. (3d) 372, 2003 41999 (S.C.J.) ; Connaught Laboratories Ltd. v. British Airways (2002), 2002 4642 (ON SC), 61 O.R. (3d) 204, [2002] O.J. No. 3421, 217 D.L.R. (4th) 717, [2002] O.T.C. 639, 13 C.C.L.T. (3d) 288, 116 A.C.W.S. (3d) 322 (S.C.J.); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 113 L. Ed. 2d 569, 111 S. Ct. 1489 (1991); Eliopoulos v. Ontario (Minister of Health & Long Term Care (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400, 276 D.L.R. (4th) 411, 217 O.A.C. 69, 43 C.C.L.T. (3d) 163, 35 C.P.C. (6th) 7, 152 A.C.W.S. (3d) 622 (C.A.); Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, J.E. 90-1436, 49 B.C.L.R. (2d) 273, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105, 23 A.C.W.S. (3d) 101; Lomas v. Rio Algom Ltd. (2010), 99 O.R. (3d) 161, [2010] O.J. No. 932, 2010 ONCA 175, 259 O.A.C. 333, 316 D.L.R. (4th) 385, 186 A.C.W.S. (3d) 665, 81 C.C.P.B. 1; Marotte v. American Airlines Inc., 296 F.3d 1255, 15 Fla. Weekly Fed. C 773 (11th Cir. 2002); Quinn v. Canadian Airlines International Ltd. (1994), 1994 7262 (ON SC), 18 O.R. (3d) 326, [1994] O.J. No. 1137, 23 C.C.L.T. (2d) 203, 48 A.C.W.S. (3d) 222 (Gen. Div.); Tandon v. United Air Lines, 926 F. Supp. 366 (S.D.N.Y. 1996); Walton v. Mytravel Canada Holdings Inc., [2006] S.J. No. 373, 2006 SKQB 231, 280 Sask. R. 1, 26 C.P.C. (6th) 253, 151 A.C.W.S. (3d) 561; Zikry v. Air Canada, Civil File No. 1716/05 A (Magistrates Court of Haifa 2006) Statutes referred to Carriage by Air Act, R.S.C. 1985, c. C-26 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21 Treaties and conventions referred to Convention for the Unification of Certain Rules for International Carriage by Air -- Montreal (Montreal Convention), May 28, 1999, arts. 17, (1), 19, 29 Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention), October 12, 1929 [page137] Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention), September 14, 1963
Hugh R. Scher and Caroline Schulz, for plaintiff. Tae Mee Park, for defendants.
J. Wilson J.: -- The Application
[ 1 ] The plaintiff sues for damages for alleged mistreatment by flight attendants in the course of an international flight resulting in his arrest and detention when the aircraft arrived in Toronto. His primary claim is for general, aggravated and punitive damages for pain and suffering and infliction of mental distress, and damages for forcible confinement and false imprisonment. He also claims damages for severe bronchitis arising from the incident.
[ 2 ] The defendants, Canjet and Imperial Group International Inc. ("Canjet") and their employees, Jane Doe 1 and 2, bring this motion pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking to dismiss this claim as disclosing no cause of action. The action is governed by the Carriage by Air Act, R.S.C. 1985, c. C-26, which incorporated the Warsaw Convention [Convention for the Unification of Certain Rules Relating to International Carriage by Air, October 12, 1929] of 1929 and the Montreal Convention of 1999 [Convention for the Unification of Certain Rules for International Carriage by Air -- Montreal, May 28, 1999] (the "Convention").
[ 3 ] The defendants argue that the application of the Convention precludes the plaintiff's claim. The defendants rely upon arts. 17 and 19 of the Convention. They also argue that art. 29 and the case law interpreting the Convention confirm that damages for psychological harm are not recoverable.
[ 4 ] The plaintiff asserts that the incident is not governed by the Convention, that there are important principles at stake and that the motion should be dismissed with costs. He argues that whether or not the facts of this case are covered by the Convention is a question of law that is not clear, and the questions raised should be decided in the context of a trial with a full elaboration of the facts. The Legal Test to Strike a Claim
[ 5 ] For the purposes of the Rule 21 motion, the facts in the pleadings are presumed to be true. [page138]
[ 6 ] The test for striking a pleading under Rule 21 is high. It must be plain and obvious that the statement of claim discloses no reasonable cause of action. The pleading will be struck only when the claim cannot possibly succeed. See Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321, [2006] O.J. No. 4400 (C.A.), at para. 8 ; Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93, at p. 980 S.C.R.
[ 7 ] Questions of law that have not been fully settled should not be disposed of at the pleadings stage and issues should be determined with a full factual context. See Naval-Torres v. Northwest Airlines Inc., 1998 14916 (ON SC), [1998] O.J. No. 1717, 159 D.L.R. (4th) 67 (Gen. Div.), at para. 14 ; Lomas v. Rio Algom Ltd. (2010), 2010 ONCA 175, 99 O.R. (3d) 161, [2010] O.J. No. 932 (C.A.), at para. 25. The Facts
[ 8 ] The plaintiff, who is a Canadian resident, purchased a return ticket through a tour operator for a vacation in Puerto Plata in the Dominican Republic with Canjet as the air carrier. On December 18, 2010, on the return flight, the plaintiff complained that he was cold. He asked the flight attendants for either the heat to be turned up on the aircraft or a blanket. The plaintiff asserts that the attendants refused both reasonable requests.
[ 9 ] When he again asked for a blanket he was told that he would be charged $10 and that he was being considered by the staff as a "high maintenance passenger".
[ 10 ] When the aircraft landed in Toronto at 12:45 a.m. on December 19, 2010, the plaintiff was escorted off the aircraft, by two Peel Regional Police officers. Once outside the aircraft, there were two other officers with sub-machine guns. The plaintiff was required to stand aside in the presence of the four armed officers while the other passengers disembarked the aircraft. The plaintiff was detained until 4:00 a.m., when he was released by the officers with an apology.
[ 11 ] The plaintiff alleges that he was unable to sleep for ten to 12 days after the forcible confinement, that he came down with severe bronchitis and that his fear of police stemming from his experiences in Russia was exacerbated. The Issues
[ 12 ] The motion raises the following issues: (1) Are the rights and obligations between the parties governed by the Convention? [page139] (2) If so, did the injury-causing event take place while the plaintiff was on the aircraft or during disembarkation and was there an "accident" within the meaning of art. 17 of the Convention? (3) Can the plaintiff recover damages for psychological harm in light of art. 29 and the case law interpreting the Convention? (4) If the Convention does not apply, is the plaintiff precluded from bringing this lawsuit for aggravated and punitive damages for mental distress and damages for forcible confinement?
Issue 1: Does the Convention apply?
[ 13 ] The Convention applies to "all international carriage of persons... by aircraft for reward" if the state is a contracting party to the Convention. Canada is such a state.
[ 14 ] The Convention applies based upon place of origin and destination. When the contract for carriage involves return travel, the place of origin and destination are the same.
[ 15 ] The parties do not dispute that Canada is a signatory to the Convention.
[ 16 ] The defendants assert that arts. 17 and/or 19 of the Convention apply. The plaintiff disputes that the Convention applies and seeks to advance a claim based upon common law.
[ 17 ] In oral argument, defence counsel conceded that art. 19, which stipulates carriers' liability for delay, does not apply to the facts in this case. The plaintiff seeks damages for his wrongful arrest and detention, not for delay. Clearly, art. 19 has no application to the facts of this case.
Guiding principles in interpreting the Convention
[ 18 ] The Convention is intended to bring predictability to all claims advanced relating to international carriers.
[ 19 ] Canadian and international jurisprudence confirms the need to interpret the Convention and any claims under the common law with uniformity and consistency. As the Divisional Court noted in Ace Aviation Holdings Inc. v. Holden, [2008] O.J. No. 3134, 2008 40223 (Div. Ct.), at para. 19, "[a] primary objective and purpose of the Montreal Convention 1999 and its predecessor, the Warsaw Convention, is uniformity, consistency, certainty and predictability with respect to the rights and obligations of carriers and passengers engaged in international carriage by air". [page140]
[ 20 ] The need for consistency in interpreting the Convention was confirmed by Molloy J. in Connaught Laboratories Ltd. v. British Airways (2002), 2002 4642 (ON SC), 61 O.R. (3d) 204, [2002] O.J. No. 3421 (S.C.J.), at para. 50 :
It is therefore of fundamental importance that there be consistency in interpreting the provisions of the Convention from one country to another. That is not to say that a judge in Canada is necessarily bound to follow what has been decided in other jurisdictions. However, where a body of case law interpreting a particular provision has been applied consistently in other jurisdictions, it would be a mistake to depart from it without very sound reasons.
[ 21 ] I adopt these comments as providing context in interpreting the Convention.
Does art. 17 of the Convention apply to this case?
[ 22 ] Article 17(1) gives rise to liability for bodily injury of a passenger caused by an accident during embarkation, while in the aircraft or during disembarkation.
[ 23 ] It provides:
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 death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. (Emphasis added)
[ 24 ] There are two lines of authority in the international jurisprudence clarifying whether art. 17 applies. The plaintiff relies on one approach, and the defendants rely upon the other.
[ 25 ] The first line of authority, relied upon by the plaintiff, considers whether the injury to the passenger occurred while on the aircraft, or while embarking or disembarking. See Acevedo v. Iberia, 449 F.3d 7 (1st Cir. Puerto Rico, 2006); Marotte v. American Airlines Inc., 296 F.3d 1255, 15 Fla. Weekly Fed. C 773 (11th Cir. 2002), at 1259 F.3d; Jaoude v. KLM Royal Dutch Airlines, 2005 WL 1949545 (S.D. Tex.).
[ 26 ] The second line of authority, relied upon by the defendants, considers whether the injury causing the incident is an "accident" within the meaning of the case law interpreting art. 17. See Tandon v. United Air Lines, 926 F. Supp. 366 (S.D.N.Y. 1996); Naval-Torres, supra; Ashad v. Deutsche Lufthansa Aktiengesllschaft (c.o.b. Lufthansa German Airlines), [2009] O.J. No. 4979, 2009 64820 (S.C.J.).
[ 27 ] I do not accept the suggestion of counsel that interpreting art. 17 is an either-or proposition in terms of which of the two questions applies. When considering whether art. 17 applies in each case, both questions must be answered. First, [page141] was the injury caused while the passenger was on the aircraft, or while embarking or disembarking engaging the Convention? Second, was there an accident within the meaning of the case law interpreting art. 17 of the Convention giving rise to liability?
Did the injury occur while the passenger was on board, or during embarkation or disembarkation?
[ 28 ] The three-part test outlined in the American jurisprudence, beginning with Acevedo v. Iberia, considers the passenger's activity at the time of the injury, the whereabouts of the passenger when injured and, finally, the extent to which the carrier was exercising control over the passenger when determining the question of whether the injury occurred on board, or during embarking or disembarking.
[ 29 ] The plaintiff argues that his injury occurred after disembarkation from the aircraft and beginning with his wrongful arrest, and therefore he argues that the Convention does not apply.
[ 30 ] The defendants argue that, based upon the facts pleaded in the plaintiff's claim, it is clear that the injury commenced during the flight and disembarkation and continued thereafter during his confinement by the police. The claim confirms:
-- First, the initial injury was sustained during the flight, when the plaintiff's requests for heat or a blanket were denied. The plaintiff asserts that he suffered severe bronchitis as part of his compensable claims.
-- Next, the plaintiff pleads that damages accrued as a result of the presence of police during the humiliating disembarkation when he was arrested and paraded in front of all of the passengers and required to stand by as the other passengers disembarked.
-- Finally, the plaintiff claims damages for the wrongful arrest when the plaintiff was detained by the police for approximately three hours. He makes no allegation of wrongdoing or inappropriate behaviour by the police.
[ 31 ] The defendant argues that, applying the three-part test in Acevedo, in the facts of this case the injury began during the flight and continued during the disembarkation, therefore engaging art. 17 of the Convention. Admittedly, the continued confinement of the plaintiff occurred after the disembarkation, but this was part of a chain of causation that occurred much earlier during the flight. [page142]
[ 32 ] The plaintiff relies on four cases from the United States which allowed actions for wrongful arrest after disemarkation. In these cases, when a passenger has been escorted from an aircraft and then detained by the police for investigation, the courts have applied the three-part location, activity and control test to determine whether the Convention applies. In the following cases, courts concluded that the Convention did not apply as the injury occurred after disembarkation:
-- In De Aviacion v. Herrera, 763 So. 2d 499, 25 Fla. L. Weekly D 1695 (3rd Dist. 2000), an action was brought against a carrier for injuries arising from a strip search that occurred at the instigation of the Venezuelan guard, after the plaintiffs had disembarked.
-- In Schroeder v. Lufthansa German Airlines, 875 F.2d 613 (7th Cir. 1989), an action was brought against a carrier for injuries arising from a strip search that occurred at the instigation of the RCMP where there was a report of a potential bomb threat, after the plaintiff had disembarked.
-- In Jaoude v. KLM Royal Dutch Airlines, supra, an action was brought for false imprisonment by Secret Service agents. The court found that the plaintiffs' claim was based on incidents that occurred after disembarkation and while in custody.
-- In Acevedo v. Iberia, supra, an action was brought against a carrier for injuries sustained while in the custody of Spanish immigration authorities.
[ 33 ] I conclude that all four cases relied upon by the plaintiff can be distinguished from the facts of this case. In these cases, an action was brought for injuries sustained while in detention. There were specific allegations of conduct by police or other authorities which caused injury during the detention. Further, in these four cases there was no continuum of injury beginning during the flight and disembarkation, and continuing thereafter. The primary injuries all took place while in detention.
[ 34 ] In this case, the pleaded injury began while the plaintiff was on board the aircraft, continued during disembarkation and concluded with the continued detention by the police. There is no information about what happened during the three hours the plaintiff was detained. There is no allegation of inappropriate conduct by the police. In contrast to the four cases noted above, in which the conduct of the detaining authorities was criticized, [page143] the plaintiff confirms that the police apologized for detaining him at the request of the carrier.
[ 35 ] The interpretation that the Convention applies when the crew reports an incident that occurs on the aircraft to the local police is consistent with the recent decision of Eid v. Alaska Airlines Inc., 621 F.3d 858 (9th Cir. 2010).
[ 36 ] In Eid, the plaintiffs brought an action for defamation against the crew of the flight for statements made by the pilot and the flight attendants to the Reno police after the pilot diverted the plane and landed in Reno in response to the flight attendant's report that she had "lost control of the first class cabin". The plaintiffs were required to disembark and were not allowed to complete their scheduled flight.
[ 37 ] There were two aspects to the defamation claim.
[ 38 ] The court concluded that the reporting of the incident to the police by members of the crew was covered by the Convention and that this aspect of the plaintiffs' defamation claim must be dismissed.
[ 39 ] The court allowed the plaintiffs' claim for defamation for the post disembarkation in-flight announcement made about the plaintiffs' conduct by the crew to the other passengers on the continued flight to stand. The court concluded that the Convention does not extend "for things that happen on planes long after [the plaintiffs have] disembarked".
[ 40 ] The court in Eid conducted an analysis to determine whether the accident causing injury occurred during the operation of disembarking. It adopted a flexible approach in assessing the question. The statements made by the crew to the police in Eid took place in the gate area by the boarding ramp. The court concluded, at p. 873 F.3d, that the pilot's statements to the police were part of the disembarking process, considering the "total circumstances surrounding the plaintffs' injuries, viewed against the background of the intended meaning of Article 17".
[ 41 ] This issue in the summary judgment motion raised in Eid involves the interpretation of the little known Tokyo Convention (Convention on Offences and Certain Other Acts Committed on Board Aircraft, September 14, 1963), which defines when a pilot may restrain a passenger and call for assistance from local authorities once the aircraft has landed with legal immunity.
[ 42 ] In assessing the defamation claim, the court in Eid, at p. 873 F.3d, adopted the chain of causation analysis outlined in the Israeli decision of Zikry v. Air Canada, Civil File No. 1716/05 A (Magistrates Court of Haifa 2006). In Zikry, the court confirmed "it is obvious that all the events are connected to the [page144] flight. The [Warsaw] Convention applies also to the embarkation and disembarkation and to all the activities following that were links in one chain."
[ 43 ] Of note, the court in Eid reversed the dismissal of an aspect of the claim in the summary judgment motion. The court concluded that the issue of whether the pilot's decision to require the plaintiffs to deplane, and the refusal to allow the plaintiffs to continue the flight after they had been cleared for flight by the local police, was reasonable, should be determined in the context of a trial as disputed facts were in issue.
[ 44 ] The issue of the reasonableness of the conduct of the pilot and the interpretation of the Tokyo Convention was not pleaded or raised by the plaintiff in this case.
[ 45 ] I conclude that the defendant has met the first branch of the test prima facie engaging the Convention. The injury- causing incident occurred on board the aircraft during the flight and in the course of disembarkation and continued during the confinement.
Was there an accident within the meaning of art. 17 of the Convention?
[ 46 ] The second question that must be determined is whether the injury-causing incident meets the definition of an "accident", within the meaning of art. 17 of the Convention.
[ 47 ] The term "accident" used in art. 17 of the Convention has been consistently interpreted to mean "an unexpected or unusual event or happening that is external to the passenger". See Air France v. Saks, 470 U.S. 392, 105 S. Ct. 1338 (1985); Quinn v. Canadian Airlines International Ltd. (1994), 1994 7262 (ON SC), 18 O.R. (3d) 326, [1994] O.J. No. 1137 (Gen. Div.); Naval-Torres, supra.
[ 48 ] The Supreme Court of the United States confirmed this definition, at p. 13 in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 119 S. Ct. 662 (1999) ("Tseng"), and emphasized that it should be applied with flexibility.
[ 49 ] A helpful reflection on the meaning of "accident" in art. 17 is found at para. 20 of Naval-Torres, supra. Justice Sharpe concludes that "accident" in the context of the Convention is a "term of art" and should be interpreted broadly to include intentional acts of wrongdoing:
The word "accident" in Article 17 is a term of art with a meaning particular to the Convention. Reading the Convention as a whole, it is apparent that "accident" in Article 17 must be interpreted to embrace intentional acts of wrongdoing. Article 17 is the sole source of liability imposed upon a carrier by the Convention for bodily injury to passengers. It follows that if "accident" were interpreted to include only inadvertent or negligent acts by a carrier, it would lead to the extraordinary result that the Convention [page145] provides a remedy for inadvertence or negligence but fails to provide any remedy for deliberate wrongdoing. It is clear, however, that this is not the case. Article 25, discussed in greater detail below, limits defences or limits on liability for where the carrier is guilty of wilful misconduct, thereby plainly indicating that deliberate wrongdoing is actionable under the Convention. (Emphasis added)
[ 50 ] As confirmed in Navel-Torres, supra, an act or omission by a flight attendant that is part of the chain of causation of injury or death of a passenger has been interpreted to be an accident within the meaning of the section.
[ 51 ] For example, in Olympic Airways v. Husain, 540 U.S. 644, 124 S. Ct. 1221 (2004), refusing to reseat a passenger from the smoking area of an aircraft, resulting in death, was found to be an accident. The carrier's [at p. 646 U.S.] "unusual and unexpected refusal to assist a passenger is a link in the chain of causation resulting in a passenger's pre-existing medical condition being aggravated".
[ 52 ] This reasoning was adopted by Pattillo J. in Balani v. Lufthansa German Airlines Corp., [2010] O.J. No. 4719, 2010 ONSC 3003 (S.C.J.). In Balani, the flight attendant refused to provide a wheelchair during disembarkation. The passenger was injured in the terminal. The court concluded that the incident was an accident within the meaning of the Convention using the chain of causation analysis.
[ 53 ] One aspect of the plaintiff's claim is that he suffered severe bronchitis as a result of the attendants' refusal to provide a blanket or heat. The defendants acknowledge that bronchitis constitutes bodily injury that may be caused by an accident -- that is, the failure of the attendants to respond to the plaintiff's requests for a blanket or warmth during the flight. As this aspect of the injury was sustained during the flight, although perhaps exacerbated by the carrier calling the police resulting in detention, the defendants concede that art. 17 applies to this aspect of the plaintiff's claim and that it should not be struck.
[ 54 ] The main part of the plaintiff's claim relates to his wrongful arrest and detention, including claims for aggravated and punitive damages for mental distress and pain and suffering due to forcible confinement. The plaintiff acknowledges that there is no aspect of bodily harm for this part of his claim.
[ 55 ] The defendants argue that the chain of causation analysis applies in this case similar to the reasoning in Husain, supra, and Balani, supra. The allegedly high-handed conduct of the flight attendants, including their refusal to provide heat or blankets and their reporting the plaintiff to the police, caused the plaintiff to be escorted from the aircraft and detained. The [page146] conduct of the attendants that began on board was part of the chain of causation of the injuries sustained, therefore constituting an accident within the meaning of the case law.
[ 56 ] I confirm the defendants' interpretation of the meaning of "accident". Applying the "term of art" broad, flexible scope of the definition of accident to include intentional acts by carrier staff in a chain of causation makes sense in light of the limits of recovery stipulated in the Convention and is consistent with the case law.
[ 57 ] I conclude that the incident in this case, considered as a whole in all of the circumstances, is an accident. There are no facts in dispute requiring a trial on this issue.
[ 58 ] The issue then is whether there can be recovery, as the plaintiff alleges psychological injuries, not bodily harm, for the wrongful confinement.
Can the plaintiff recover damages in light of art. 29 and the case law interpreting the Convention?
[ 59 ] I conclude that the plaintiff cannot succeed under the Convention for the damages he claims for psychological harm and mental distress based upon art. 29 of the Convention and the case law interpreting the Convention.
[ 60 ] The pleadings in this case include a claim for aggravated and punitive damages. Article 29 makes it clear that these are not recoverable if a claim is made under the Convention, or in contract or tort:
Article 29 -- Basis of Claims
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the 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. (Emphasis added)
[ 61 ] As Dovell J. noted in Walton v. Mytravel Canada Holdings Inc., [2006] S.J. No. 373, 2006 SKQB 231, at para. 32, the wording of art. 29 is "clear and obvious. Any claim for damages of a passenger of an international flight against a carrier, contracting carrier or employee of either carrier can only be brought within the ambit of the Montreal Convention of 1999."
[ 62 ] Further, quite apart from art. 29, the Canadian and international case law interpreting the intended scope of the Convention is clear that damages for psychological harm, [page147] without accompanying bodily injury, are not recoverable under the Convention.
[ 63 ] The House of Lords in Sidhu v. British Airways Plc; Abnett v. British Airways Plc., [1997] 1 All E.R. 193, [1997] A.C. 430 (H.L.), at pp. 201, 207 All E.R., makes it clear that damages for psychological injury cannot be maintained under s. 17 of the Convention.
[ 64 ] The Supreme Court of the United States in Tseng, adopted the approach in Sidhu and confirmed that the plaintiff, Tseng, who alleged psychic and psychosomatic injuries, but no "bodily injury" as that term is used in the Convention, had no remedy available under the Convention or the common law. At p. 162 U.S., the court reaffirmed its decision in Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 113 L. Ed. 2d 569 (1991) to the effect that "mental or psychic injuries unaccompanied by physical injuries are not compensable under Article 17 of the Convention".
[ 65 ] Canadian decisions have consistently followed the approach in Sidhu, supra, and Tseng, supra, confirming that psychological harm, unless it is connected with bodily injury, is not recoverable under the Convention. See Plourde v. Service aérien FBO inc. (Skyservice), [2007] Q.J. No. 5307, 2007 QCCA 739, at paras. 52-54 ; Walton, supra, at para. 43 ; Chau v. Delta Air Lines Inc. (2003), 67 O.R. (3d) 108, [2003] O.J. No. 4885, 2003 41999 (S.C.J.).
[ 66 ] In Plourde, supra, the Québec Court of Appeal considered whether the Montreal Convention altered the treatment of psychological injuries under the former Warsaw Convention. Justice Thibault noted, at para. 52, that when the Montreal Convention was being developed, "the question of compensation for psychological harm was specifically addressed... and clearly rejected". The court confirmed, at para. 30, that the notion that the Montreal Convention altered the treatment of psychological harm from the Warsaw Convention "is not supported by legal scholarship or case law, which have concluded that, with regard to this aspect of the law, there was no change from what prevailed under the Warsaw Convention".
[ 67 ] Article 17 applies to the facts of this case as an accident during flight and disembarkation. I conclude that the plaintiff cannot advance the claim for psychological damages or any claim for punitive or exemplary damages based upon the Canadian and international case law, and by the clear wording of art. 29 of the Convention.
[ 68 ] Therefore, all aspects of the plaintiff's claim for damages for psychological harm, including punitive and exemplary [page148] damages, shall be struck. The claim for general damages for the bodily injury of bronchitis may be pursued.
If the Convention does not apply, is the plaintiff precluded from bringing this lawsuit for aggravated and punitive damages for mental distress and damages for forcible confinement?
[ 69 ] If I am wrong in my interpretation that art. 17 of the Convention applies to the facts of this case, I conclude, in the alternative, that the claim for punitive and exemplary damages must in any event be struck by applying the clear restrictions contained in art. 29.
[ 70 ] The defendants did not expand on the argument that even if the Convention did not apply, that recovery for psychological damages is not available under the case law.
[ 71 ] It appears that courts worldwide are taking a consistent view that the Convention prescribes the limits of recovery in international travel. If a plaintiff cannot recover under the Convention for psychological injury, remedies under local jurisdictions where actions are commenced cannot assist. Both Sidhu, supra, and Tseng, supra, have taken a strong, clear approach to the exclusive application of the Convention, also known as the "preemptive approach".
[ 72 ] The question of the exclusive application of the Convention has not been considered in a fulsome manner in Canada by an appellate court, and was not addressed before me. It appears that to allow recovery for psychological damages under the common law if art. 17 does not apply would undermine the principles of consistency and uniformity in processing claims involving international travel. That is a question for another day, as this alternative argument was not fully presented or developed.
[ 73 ] I conclude, however, in the alternative, that if the Convention does not apply, that the plaintiff is precluded by the clear words of art. 29 from claiming exemplary or punitive damages for any alleged harm from this incident. Conclusion
[ 74 ] I accept the arguments of the defendants that the plaintiff experienced an accident during flight and disembarkation giving rise to a claim for bodily injury of alleged severe bronchitis. Any claim for psychological injuries or mental distress flowing from the detention of the plaintiff during the disembarkation and thereafter must be struck pursuant to the case [page149] law interpreting art. 17 of the Convention. As well, art. 29 is clear that all claims advanced for punitive and exemplary damages must be struck.
[ 75 ] Therefore, apart from the claim for damages for the bronchitis, which is acknowledged by the defendants to be bodily injury falling within the definition of accident, the balance of the plaintiff's claim shall be struck. Costs
[ 76 ] The results of the motion are divided, although the defendants were largely successful. If the parties are unable to agree with respect to costs, they may make an appointment to speak to me through my secretary before filing any written submissions.
Motion granted in part.