Montreal Convention Exclusivity Confirmed by BC Supreme Court

The Montreal Convention is an international treaty, which is incorporated into Canadian law by the Carriage by Air Act. It applies to almost all international flights operated by airlines. In a recent decision, the British Columbia Supreme Court confirmed that the Montreal Convention provides the exclusive recourse to passengers claiming damages for matters falling within its scope.

In Spencer v. Transat A.T. Inc et al, 2022 BCSC 145, the Plaintiff brought a proposed class proceeding against Air Transat A.T. Inc., Transat Tours Canada Inc., Transat A.T. Inc., and Flair Airlines for damages allegedly arising from delays caused by fuel stops during various flights between Canada and Mexico. The Plaintiff accused the defendants of fraudulent misrepresentation, breach of contract, unjust enrichment, and engaging in deceptive acts and practices under the Business Practices and Consumer Protection Act (“BPCPA”).  The Plaintiff also sought punitive damages.

The first step in a proposed class action is a “certification” application to determine if a class proceeding is appropriate in the circumstances. The first issue that the Court considers on such an application is whether the pleadings disclose a valid cause of action (section 4(1)(a) of the Class Proceedings Act (“CPA”)).

At the certification hearing, the Defendants argued that all of the Plaintiff’s claims were barred by the Montreal Convention. The Plaintiff did not advance a claim under the Montreal Convention. Article 19 of the Montreal Convention specifically governs claims for flight delay.

The Court accepted the Defendants’ argument that the Montreal Convention exclusively governed the Plaintiff’s claims and that the Plaintiff was relying on invalid causes of causes of action. The Court considered several international authorities which confirm the exclusivity principle of the Montreal Convention. While decisions from foreign courts are not binding in British Columbia, the Court noted that the Supreme Court of Canada has recognized the importance of achieving international uniformity in the application of the Montreal Convention.

The Plaintiff attempted to argue that her claims fell outside the “temporal limits” of the Montreal Convention, as she claimed that the alleged decisions to perform fuel stops were made prior to any passengers boarding the subject flights. The Court rejected this argument, noting that this issue was directly addressed by the Supreme Court of Canada in 2014 in Thibodeau v. Air Canada:

… Rather, courts must focus their application of the exclusivity principle on the location or the activity of the passenger when the accident or occurrence directly causing the particular injury giving rise to the claim occurred, not on some antecedent fault (citations omitted).

The Court also confirmed that the Plaintiff’s claims for punitive damages could not succeed due to Article 29 of the Montreal Convention, which provides that “punitive, exemplary or any other non-compensatory damages shall not be recoverable”.

The Court dismissed the Plaintiff’s application for certification. However, leave was granted to the Plaintiff to apply for permission to amend the lawsuit and certification application by bringing a claim under the Montreal Convention.

This is part one of a two-part blog series. Part two will discuss how the Plaintiff was later precluded from amending her claim after the expiry of the limitation period set out in Montreal Convention.

Michael Dery acted as counsel for the Defendant, Air Transat.

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