Court File and Parties
COURT FILE NO.: CV-18-00598537-0000
DATE: 20221219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THOMAS HØJLUND AND VIBEKE WERNER BØTCHER Plaintiffs
– and –
AIR CANADA Defendant
COUNSEL: Jacques P. Gauthier, for the Plaintiffs Jonathan Roth, Counsel to Gauthier + Associates
Clay S. Hunter, for the Defendant
HEARD: AUGUST 8, 2022
BEFORE: VELLA J.
REASONS FOR DECISION
[1] Air Canada seeks to strike those causes of actions and claims for damages that are precluded by the Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”), incorporated into the laws of Canada by the Carriage by Air Act, R.S.C. 1985, c. C-26 as amended.
[2] This motion is brought under r. 21.01(1)(b) and, in the alternative, r. 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[3] There are three issues to be determined:
a) Has Air Canada established whether or not its contract of passage promised a guaranteed departure time?
b) If so, then is it plain and obvious that the statement of claim as pleaded supports a claim based in delay, and not non-performance of the contract of passage?
c) If it is plain and obvious that the statement of claim as pleaded, or portions thereof, are based in delay such that the Montreal Convention applies, which causes of action and/or claims for damage must be struck, and should leave to amend be granted?
[4] For ease of convenience, and in light of my findings, I will integrate the general analysis under rr. 21.01(1)(a) and (b) while recognizing that these are two distinct grounds.
Preliminary Issue: Should Air Canada be granted leave to file evidence?
[5] Rule 21.01(2)(a) provides that no evidence shall be admitted under this subrule except on consent or by leave of the court.
[6] Air Canada seeks leave to file the affidavit of Anne-Marie Guest, sworn April 21, 2022 and exhibits.
[7] Højlund and Bøtcher do not consent.
[8] The main purpose of the Guest affidavit is to file as evidence the terms and conditions of the “contract of passage” or airline ticket that allegedly attached to the airline tickets issued to Højlund and Bøtcher. Air Canada states that they are essential to a full and fair hearing in order to support its position that there was no guaranteed arrival time and therefore this action is grounded in delay as opposed to non-performance. This would mean that the terms of the Montreal Convention apply and precludes certain of the claims and headings of damage sought.
[9] While I understand the significance of the proposed evidence, I do not agree that leave ought to be granted in the circumstances of this motion.
[10] The reasons underlying my ruling are founded in the litigation steps leading to the hearing and further delay will ensue.
[11] This action was commenced by statement of claim dated May 25, 2018. Air Canada delivered its defence by statement of defence dated July 20, 2018.
[12] Some steps have been taken to advance this action, but examinations for discovery have not yet been conducted. Notably Air Canada delivered Requests to Admit dated July 2, 2019 and March 31, 2022 respectively, and Højlund and Bøtcher delivered a response by lawyer’s letter dated April 8, 2022 refusing to admit the facts in the latter request to admit.
[13] On or about October 2, 2019, Air Canada served its Notice of Motion for this motion. In 2022, Air Canada sought a timetable and date for the hearing of this motion and a motion for security for costs. On May 6, 2022, Ramsay J. issued an endorsement directing that the motion for security was within the jurisdiction of an Associate Judge and directing a case conference to deal with this motion.
[14] A case conference was convened on May 19, 2022, before Morgan J. His Honour specifically ruled that there would be no evidentiary record for this r. 21 motion and that it would be heard on the basis of the pleadings and documents mentioned in the pleadings.
[15] No appeal was taken from that Order.
[16] Accordingly, Air Canada had full notice that there would be no evidence admissible and was also knew of the Plaintiffs’ responses to its Requests to Admit. It cannot be taken off guard or take the position that it will be prejudiced by a ruling consistent with the ruling of Morgan J.
[17] Furthermore, it is evident from the statement of claim (the allegations of which are taken to be true for purposes of a r. 21 motion to strike) that Højlund and Bøtcher take issue with the position that their contract of passage had no guaranteed arrival time, giving rise to a factual dispute on a material issue.
Issue 1: Has Air Canada established whether or not its contract of passage promised a guaranteed departure time?
[18] Air Canada takes the position that its International Tariff – General Rules Applicable to the Transportation of Passengers and Baggage – Air Canada issued August 9, 2017 (the “International Tariff”) and the General Conditions of Carriage and Tariffs – Air Canada (printed from Air Canada’s website apparently on May 30, 2017) (the “General Conditions”), are properly before the court on this motion by reason of their reference in the statement of defence.
[19] Air Canada submits these documents include Rule 80 of Air Canada’s International Tariff and it does not guarantee times of departure, but only best efforts (Rule 80(1) and (3), International Tariff).
[20] I note that Morgan J. indicated that the documents mentioned in the pleadings would be before the court. However, on a r. 21.01 motion to strike a statement of claim, only those documents referenced in the statement of claim are properly before the court. The proposed International Tariff and General Conditions are pleaded in the statement of defence and was filed with this court as Appendix B to Air Canada’s factum. They are not pleaded in the statement of claim.
[21] It is clear from the jurisprudence that only documents incorporated by reference into the targeted pleading under a r. 21.01(1)(a) and (b) motion are properly before the court; in this case the documents incorporated by reference into the statement of claim: r. 25.06(7) and Montreal Trust Co. of Canada v. Toronto Dominion Bank (1992), 40 C.P.C. (3d) 389 (Ont. Gen. Div.), at paras. 3-5 (cited with approval, McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 32).
[22] In the alternative, Air Canada submits that I should take notice of the International Tariff and General Conditions since they are recognized in the regulations under the Canada Transportation Act, S.C. 1996, c. 10, and therefore I should accept them as properly before me. However, they are not specifically incorporated as part of those regulations. Rather, the regulations essentially empower the airlines to create their own tariffs setting out the terms and conditions of the contract of carriage.
[23] However, I agree with Højlund and Bøtcher that the International Tariff and the General Conditions are not either a statute or regulation (within the meaning of the Canada Evidence Act, R.S.C. 1985, c. C-5 or Ontario Evidence Act, R.S.O. 1990, c. E.23) and therefore must be tendered by way of affidavit evidence, or, in this case, incorporated by reference into the statement of claim and not the statement of defence.
[24] Furthermore, no exceptional circumstances were cited by Air Canada in support of its submission.
[25] In the further alternative, Air Canada submits that Højlund and Bøtcher improperly refused to admit facts contained in its Request to Admit dated March 31, 2022, and therefore I should deem them to have admitted these facts.
[26] The Plaintiffs’ lawyer responded to the Request to Admit by letter dated April 8, 2022 and stated that they refuse to admit the truth of the facts contained or the authenticity of the documents attached. The reason for this refusal was that, while the Plaintiffs have delivered their affidavit of documents and productions, the Defendant had yet to serve its own affidavit of documents. The Plaintiffs believed it unfair that Air Canada made this Request but has not yet delivered its affidavit of documents. Air Canada does not seek to strike the Response to the Request to Admit, but rather that I deem all of the Request to Admit as having been admitted by the Plaintiffs under r. 51.03(3) by reason that they did not provide the reasons for each refusal.
[27] However, the Plaintiffs did not set out a reason for the refusal of each individual fact or document. Rather the Plaintiffs relied on a general reason for the refusal.
[28] Air Canada relies primarily on Pershad v. Lachan, 2015 ONSC 5290, at para. 81, and de Naray v. Gainers Inc. (1997), 17 C.P.C. (4th) 396 (Ont. Gen. Div.), cited in its factum. However, in my view the Plaintiffs’ reasoning for refusing to admit the truth of the facts and documents in the Request to Admit is understandable in the circumstances of the timeline of this case. Air Canada ought to have delivered its own affidavit of documents well before the time it delivered the Request to Admit. No good reason has been offered for Air Canada’s tardiness and ignoring of timelines under the Rules.
[29] The Plaintiffs’ response was provided before the Morgan J. case conference. Air Canada ought to have known by then that it would need to file evidence on this motion, and that the Plaintiffs were not going to consent.
[30] This motion had been outstanding for nearly three years by the time it came for hearing. Air Canada had an abundance of time to consider how best to pursue its intended attack on the claim.
[31] Air Canada chose to pursue this motion notwithstanding its own conduct which has needlessly lengthened this proceeding, and notwithstanding its knowledge that it required the terms and conditions allegedly attached to the Plaintiffs’ airline tickets and admissions that Marco Polo advised them of the terms and conditions of Air Canada’s contract of carriage in evidence.
[32] I have considered the Request to Admit and the corresponding Response. In my view, this issue is better left to the trial judge. In any event, the Request to Admit does not seek that the events in issue constitute a “delay” within the meaning of the Montreal Convention nor do the International Tariff or General Conditions appear to be the subject of a request to admit the authenticity thereof. Furthermore, the documents attached to the Request (which appear to be from the travel agent, Marco Polo) have not been translated into English, contrary to s. 125(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and therefore are not properly before this court in any event.
[33] Accordingly, the International Tariff and General Conditions are not properly before this Court on this motion.
Issue 2: Has Air Canada established whether or not its contract of passage promised a guaranteed departure time?
[34] As a result of my finding regarding the International Tariff and the General Conditions are not properly before this court for purposes of deciding the r. 21.01(1)(a) and (b) motions, Air Canada has not established, based on the statement of claim, that its contract of passage did not guarantee a departure time and that the claim is captured as “delay” for purposes of the Montreal Convention.
[35] Air Canada relied on Schedule VI, Article 3, section 5 providing that lack of notice by the air line carrier of the application of the Montreal Convention does not affect the existence or validity of the contract of carriage which shall nonetheless be subject to the rules of the Convention. However, this provision does not assist Air Canada where its contract of carriage, and the associated terms and conditions, is not before the court.
[36] Notwithstanding my finding, however, I will proceed to an analysis under rr. 21.01(1)(a) and (b) by an examination of the statement of claim and the documents incorporated therein.
Issue 3: Is it plain and obvious that the statement of claim as pleaded supports a claim based in delay, and not non-performance of the contract of passage?
Rule 21.01 Motion to Strike
[37] Under r. 21.01(1)(b), the court may strike out a pleading on the ground that it fails to disclose a reasonable cause of action or defence. Under r. 21.01(1)(a), the court may determine a question of law that will dispose of all or substantially all of the proceeding, substantially shorten the proceedings, or result in a substantial cost savings.
[38] The test is well established. It must be plain and obvious that the action (in this matter) fails to disclose a reasonable cause of action or that the terms of the Montreal Convention apply limiting the causes of action and damages that may be pursued against Air Canada (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17).
[39] The jurisprudence is clear that the power to strike a claim will only be exercised in the clearest of cases. This is a high threshold for the moving party, Air Canada, to meet (O’Mara v. Air Canada, 2013 ONSC 2931, 115 O.R. (3d) 673).
[40] Furthermore, the facts as pleaded in the statement of claim are taken to be true (Prete v. Ontario (1993), 1993 CanLII 3386 (ON CA), 16 O.R. (3d) 161 (C.A.), at para. 16, leave to appeal refused, [1994] S.C.C.A. No. 46).
[41] As already discussed, documents incorporated into a statement of claim are considered to be part of that pleading and properly before the court as part of the factual matrix.
[42] The Court of Appeal, in Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at para. 30, quoting Paul Perell and John Morden, The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada Inc., 2010), at p. 445, stated that as long as a claim is “has some chance of success,” it will be permitted to proceed. Furthermore, in the same paragraph, the “novelty of the cause of action is of no concern at this stage of the proceeding”.
The Montreal Convention
[43] The Montreal Convention is an international treaty that governs the limits of liability and damages that air carriers in the course of international carriage can be liable for. Canada is a signatory to this treaty. It was entered into force in Canada on November 4, 2003 and succeeded the Warsaw Convention. Its formal name is the Convention for the Unification of Certain Rules Relating to International Carriage by Air.
[44] The Montreal Convention sets out certain claims that fall under its exclusive scope. Of relevance to this motion, if the pleaded claims are captured by the Montreal Convention, the Convention provides the passengers with an exclusive cause of action and only certain types of pecuniary damages are recoverable (Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 38; O’Mara). Conversely, general damages for “delay” of an international flight (within the meaning of Article 19 of the Convention), damages for purely psychological injuries not caused directly by “bodily injury caused by accident” (within the meaning of Article 17 of the Convention) and punitive, exemplary and any other non-compensatory damages are precluded.
[45] Equally relevant, claims based in non-performance of the contract of air passage is not captured by the Montreal Convention by omission; see Chapter III: Liability of the Carrier and Extent of Compensation for Damage of the Convention.
[46] With respect to the exclusivity and comprehensiveness of the Montreal Convention, and recoverability of damages, Article 29 of the Montreal Convention states:
In the carriage of passengers…any action for damages, however founded, whether under this 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.
[47] A significant body of jurisprudence has developed across the world, including Canada. It is clear that any claims pled that fall within the scope of the Montreal Convention will be struck at the pleadings or pre-trial stage.
The facts pled in the statement of claim
[48] The facts pled in the 55-paragraph statement of claim are that the Plaintiffs were not allowed to board Air Canada flight AC882 departing from Toronto, Canada for Copenhagen, Denmark on October 15, 2017, because a representative of Air Canada alleged, at the boarding gate, that Bøtcher’s passport had been reported stolen. Bøtcher advised that her passport had not been stolen or reported stolen and that she had been traveling with the same passport to numerous international destinations, including an Air Canada flight from Frankfurt to Vancouver earlier that month.
[49] Thereafter, the Plaintiffs spoke to an Air Canada customer service representative who confirmed that neither Bøtcher nor Højlund would be allowed to board AC Flight 882. The customer service representative further told the Plaintiffs that he could book them on another flight on October 17, 2017, but only if Bøtcher produced valid travel papers.
[50] The Plaintiffs’ respective luggage was removed from AC Flight 882.
[51] The Plaintiffs paid to upgrade their tickets to business class with Air Canada and departed on October 17, 2017 after Bøtcher was able to produce a letter from Danish authorities stating that her passport had not been reported stolen, and that Bøtcher’s passport was valid.
[52] Also of note, the claim pleads flight AC 882 departed on October 15, 2017 on time, and Højlund and Bøtcher’s respective, pre-assigned, seats were available for their use. The only obstacle was Air Canada’s allegation that Bøtcher’s passport had been stolen.
[53] The statement of claim further pleads that “the Plaintiffs were both denied boarding on AC 882 on October 15, 2017 as a result of factors which were completely within the control of the Defendant Air Canada. The deliberate actions of the Defendant Air Canada constitute non-performance of the contracts of international carriage with the Plaintiffs”. The customer service representative did provide them with vouchers for hotel accommodation for one night and meal vouchers.
[54] In addition, the Plaintiffs plead that the Ministry of Foreign Affairs of Denmark issued a report dated October 16, 2017 stating that there was no evidence or indication in the Danish government’s records to support Air Canada’s allegations that Bøtcher’s passport had been stolen or reported stolen. Furthermore, the Plaintiffs plead that they received a document from Air Canada’s Departure Control system Record which stated regarding the boarding of Bøtcher that “AC0882 15OCT17 YYZ 20135/2145 33 HH1…PAX DENIED BOARDING DUE DHP…BAD SCQCD N OFFLOADE D” and “16OCT/0031Z QAS EA6155-CB/OSC9645 DHP STATUS REMOVED”.
[55] The statement of claim requests, amongst other relief, a declaration that the Montreal Convention does not apply to this action. It seeks damages for breach of contract, damages for negligent or intentional misrepresentation, and punitive damages.
[56] As stated, the statement of claim does not plead the International Tariff issued by Air Canada on August 9, 2017 or the General Conditions of Carriage and Tariffs. It also does not plead that the Plaintiffs’ flight was delayed but rather that their contract of carriage was not performed.
Analysis
[57] The seminal case regarding the interpretation and application of the Montreal Convention is Thibodeau. Of note, Cromwell J. writing for the majority, at para. 47, stated:
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.
[58] In other words, one cannot escape the reach of the Montreal Convention by dressing up facts in causes of actions that are not explicitly captured by the Convention (Khan v. KLM Royal Dutch Airlines et al., unreported, Court File No. 07-CV-339072 PD3, September 30, 2009 (Ont. S.C.); Kandiah v. Emirates, 2007 CanLII 23911 (Ont. S.C.)). Of particular import to this motion, however, is the statement that the Montreal Convention does not address all possible claims relating to international air travel.
[59] As stated in Thibodeau, at para. 64, one of the main purposes of the Convention is to “bring uniformity across jurisdictions to the types and upper limits of claims for damages that may be made against international carriers for damages sustained in the course of carriage of passengers, baggage and cargo”. Furthermore,
the application of the Montreal Convention focuses on the factual circumstances surrounding the monetary claim, not the legal foundation of it. To decide otherwise would be to permit artful pleading to define the scope of the Montreal Convention.
[60] The relevant provision of the Montreal Convention, relied upon by Air Canada as the basis for its submission that the subject claims are captured by it, is Article 19:
Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
[61] There is considerable jurisprudence concerning the meaning of “delay” within the context of Article 19 both domestically and internationally. Air Canada submits that providing the carrier ultimately transports the aggrieved passenger to the destination that is the subject of the air passage contract, then any alleged misconduct will be the product of delay and captured exclusively by the Convention. “Delay” has been found to occur when the carrier fails to transport the passenger within a reasonable period of time having regard to the circumstances of the case.
[62] Furthermore, delay encompasses events that occur during a continuum of events from embarkation to disembarkation (Stott v. Thomas Cook Tour Operators Ltd., [2014] UKSC 15, at para. 61, cited with approval in Thibodeau, at para. 57).
[63] Air Canada particularly relied on Ikekpeazu v. Air France, 2004 WL 2810063 (D. Conn.); and Fields v. BWIA Intern. Airways Ltd., 27 Avi 17,933 (E.D.N.Y. 2000) during oral argument.
[64] In Ikekpeazu, the United States District Court considered a claim by a passenger who was denied boarding due to an alleged security problem with his passport. Air France moved to strike the claim on the basis that it fell within the scope of the (former) Warsaw Convention. The plaintiff then responded by seeking leave to amend his pleading to base his claims on the Warsaw Convention. However, in this decision there was no discussion of delay versus non-performance. Rather, the plaintiff conceded that his claim was captured by the Warsaw Convention.
[65] In Fields, a motion for summary judgment (with evidence) under the Warsaw Convention, the passenger claimed damages for emotional injuries arising from being denied boarding on an international flight to attend her father’s funeral. The plaintiff alleged that this was a non-performance of the contract of passage, and not delay. However, in that case the plaintiff did not attend check in on time, and the flight left without her. The funeral in Barbados was delayed, and the plaintiff arrived the next day. The court agreed that the gravamen of the plaintiff’s claim was emotional distress resulting from her delayed arrival in Barbados, and therefore the action was for delay under Article 19 of that convention (with the same wording). The U.S. District Court held that it was “of no consequence that BWIA’s refusal was occasioned by a dispute” over whether the plaintiff had arrived at least 60 minutes before departure.
[66] A number of the cases relied upon by Air Canada deal with “bumping” passengers from one flight to another usually due to overbooking. These cases have classified the alleged misconduct as falling under the rubric of “delay” under the Convention.
[67] Air Canada submits that the reason for the delay is irrelevant. As long as the affected passenger is eventually transported to their ticketed destination, the claim is one of delay.
[68] The Plaintiffs respond that Air Canada relies primarily on cases decided in foreign jurisdictions and that it must call expert evidence on foreign law. I disagree. While not binding on this court, decisions from other jurisdictions beyond Canada, interpreting the Montreal Convention or its predecessor, are helpful. This court is well able to interpret such case law. Indeed, it is appropriate that this court take into consideration the manner in which other courts have interpreted these same Articles to promote consistency.
[69] The Plaintiffs rely on a decision from the Quebec Small Claims Court, Miller c. Air Canada, 2009 QCCQ 6235. In that case, the court found that the plaintiffs were not allowed on to their scheduled flight. However, no “valid reason” was given. The court found that in those circumstances, the grievance was that “the contract of carriage was not performed at all” (at para. 28).
[70] The difficulty with Air Canada’s position is that these passengers, Højlund and Bøtcher, were both denied carriage on Air Canada’s apparently mistaken belief that Bøtcher’s passport had been stolen.
[71] Based on the statement of claim, Air Canada not only denied boarding to Bøtcher, but also to Højlund. There appears to be no reason given for denying Højlund passage other than the fact that he is Bøtcher’s spouse. I am aware that Air Canada does not accept the version of facts set out in the statement of claim, but it is stuck with them for purposes of this motion.
[72] I am not convinced that the particular circumstances as pled makes it plain and obvious that the pleaded facts give rise to “delay” on behalf of either of the Plaintiffs. The reason for the denial of their passage had to do with circumstances unrelated to the ability of the plane to travel on time due to weather, mechanical difficulties or similar concerns, or with respect to over booking (or bumping), or anything that the Plaintiffs did to thwart or delay their own ability to travel.
[73] The courts have recognized that non-performance of the airline’s contract of passage falls outside the scope of the Montreal Convention. Indeed, Air Canada conceded in its factum that non-performance is not captured by the Montreal Convention. This is not a question of dressing up the facts in a tort or breach of contract claim to try to avoid the application of the Montreal Convention.
[74] In my view, it is not plain and obvious that this claim fails to disclose a reasonable cause of action at this early stage. Furthermore, it is not plain and obvious that the claim as pleaded is subject to the Montreal Convention.
[75] In the alternative, it is not plain and obvious that Højlund’s claim is bound to fail. There is no reason pleaded in the statement of claim underlying Air Canada’s refusal to allow him to board, other than the allegations concerning his spouse’s passport. Accordingly, even if it was plain and obvious that Bøtcher’s claim was as a “delay” claim (and I find it is not based on the statement of claim), striking her claim would not result in substantially narrowing the scope of the claim, substantially shortening the time at trial or resulting in a substantial savings of costs in the overall scheme of things, since all of the facts pleaded would still be relevant to Højlund’s claim with the possible exception of damages that might be somewhat narrowed.
The statement of claim discloses a reasonable cause of action, even if the Montreal Convention Applies
[76] The Plaintiffs argued, in the alternative, that even if the claim falls within the scope of the Montreal Convention, it still discloses a reasonable cause of action. Air Canada agrees and states that in such a case the limits on recoverability in damages applies. Both parties agree that claims for punitive and exemplary damages are foreclosed under the Convention.
[77] However, Air Canada submits that non-compensatory damages are also not recoverable under Article 19 of the Convention. It also submits that in order to recover general nonpecuniary damages the passenger must have suffered from a physical injury as opposed to distress or a psychological injury.
[78] Air Canada appears to adopt a restrictive view of “physical injury” that forecloses psychiatric disorders. In my view this is an outdated view of “physical injury”. In any event it is not appropriate to strike this type of damages claim on the basis of pleadings. Expert evidence will likely be required to properly adjudicate this form of injury to determine whether it meets the requisite threshold.
[79] Air Canada also submits that damages for delay are limited solely to special damages, out-of-pocket expenses or “easily quantifiable economic loss cause by the delay”. Schedule VI, Article 22(2) of the Carriage by Air Act defines the monetary limit arising from delay, upon proof of loss, 4,696 “Special Drawing Rights of the International Monetary Fund” per passenger or approximately CAD $8050 per passenger. However, as the Plaintiffs point out, that limit can be exceed if the airline acted “recklessly and with knowledge that damage would probably result on a subjective basis, and proof of special damages caused by the delay.”
[80] The claim pleads intentional and reckless conduct by Air Canada on behalf of both of Højlund and Bøtcher. The damages claimed as pleaded have a chance of success, with the exception of the claim for punitive and exemplary damages under the Montreal Convention.
[81] Finally, had I found that the claim, as pleaded, was governed by the Montreal Convention, I would have granted leave to the Plaintiffs to amend the claim to be in compliance with that Convention.
CONCLUSION
[82] The motion is dismissed.
[83] The parties have already exchanged cost outlines and they are posted on CaseLines. It may be that they can now agree on costs. However, if they cannot, then the Plaintiffs have 10 business days to provide brief written submissions on costs. The Defendant shall then have until January 13, 2023 (accounting for the statutory holidays) to provide its brief written submissions. The respective cost submissions will not exceed three typed double-spaced pages each and should be delivered to my judicial assistant.
Justice S. Vella
Released: December 19, 2022
COURT FILE NO.: CV-18-00598537-0000
DATE: 20221219
ONTARIO
SUPERIOR COURT OF JUSTICE
THOMAS HØJLUND AND VIBEKE WERNER BØTCHER Plaintiffs
– and –
AIR CANADA Defendant
REASONS FOR JUDGMENT
Vella, J.
Released: December 19, 2022