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Rights and Limitations
Published in the February 2009 issue of Transportation Notes - View Article
It has often been observed that every judge has been an airline passenger but few have had occasion to run an airline. The same may be remarked of legislators and bureaucrats whose responsibilities lead them into the field of commercial aviation. The month of February has brought us a legal decision and draft legislation which bear the badges of the muted annoyance of the dissatisfied passenger as judge or legislator. However, in the case of Lukas v. United Airlines a judge of the Manitoba Court of Queen’s Bench does overcome the apparent annoyance to deliver a very sensible and welcome decision.
The same cannot be said of the private member of Parliament who has proposed Bill C-310, An Act to Provide Certain Rights to Air Passengers. This proposed legislation is clearly inspired by EU Regulation No. 261/2004 which established rules on compensation and assistance to passengers in the event of denied boarding, cancellation and delay. In some respects it is more draconian than the EU regulation. While it clearly will not become law in its present form, it does represent a current which may eventually find legislative expression in Canada. We will consider these developments below.
The Lukas case brought before the court the issue of damages which can be awarded in the case of delay in international carriage. The plaintiff is an academic at the University of Manitoba. He was registered to attend a conference in Ohio and was specially interested in attending a workshop on the subject of “Countable Borel Equivalence Relations”, a matter of particular importance in his field of study. Apparently, the rest of the conference was of little interest to him.
He was scheduled to depart the evening before the workshop would take place. About three and a half hours before his scheduled flight departure he was advised by telephone that his flight was cancelled due to a mechanical failure. He proceeded to the airport and attempted to make alternative flight arrangements. There was one dim hope of getting on a flight operated by Northwest, but that was not to be. The judge described his airport experience with apparent empathy. United had no representative at its check-in counter for an hour after the passenger’s arrival. When a representative did show up, she was not able to provide effective assistance. In order for the plaintiff to make the Northwest flight he would either have to buy a ticket or have the United ticket endorsed to Northwest. The United agent did not know how to effect this endorsement and sought the assistance of a supervisor. Time ran out. The passenger became agitated and the United agent gruff. An altogether unpleasant airport encounter which the judge described in moderate words, but with visible hints of sympathy for the passenger’s position.
The court identified two basic issues. In the first place, what must an air carrier demonstrate in order to substantiate a plea of “necessary measures” in the context of a mechanical delay? Assuming that a carrier fails to make out this defence, what are the sorts of damages which the plaintiff may be awarded?
On the second of these issues, the court’s decision is very satisfactory. It accepted what little good authority there is on this point in Canada and rejected a series of decisions of the Cour de Québec (the Quebec small claims court which does not allow lawyers to participate in its hearings) which would have opened the doors to claims for general damages for mental anguish or inconvenience consequent on flight delays. In particular, the Court noted that ever since the decision of the United States Supreme Court in Eastern Airlines, Inc. v. Floyd it has not been doubted that claims for mental anguish cannot be maintained in cases based on Article 17 (claims arising out of bodily injury or death) of the Warsaw Convention where the mental anguish does not arise out of bodily injury (the Floyd court expressed no view on whether a claim for mental anguish would be receivable if the anguish did arise from bodily injury).
In the present case, Justice Duval of the Manitoba Court of Queen’s Bench joined with a number of justices who have expressed the view that it would indeed be surprising if the Convention should be found to allow claims for mental anguish, standing alone, in cases of delay while not permitting such claims to those involved in accidents. Besides Justice Nordheimer in the case of Chau v. Delta, decided by the Ontario Superior Court of Justice in 2003, the sentiment was echoed by Justice Mayrand in the Superior Court of Quebec in Simard v. Air Canada, a case decided in 2007.
Basing himself on these precedents, Justice Duval concluded that under the Montreal Convention there can be no recovery “for intangible injury suffered as a result of mental distress, inconvenience or hardship.” The plaintiff’s claims for missed academic and learning opportunities were dismissed and he was left with a claim for out of pocket expenses. An attempt to advance a claim under the provisions of a domestic statute was likewise dismissed.
Thus, the outcome of the Lukas litigation was quite satisfactory for the air carrier. However, before getting to the end of the case, the court did make a number of comments which echo those of the European Court of Justice in the recent case of Wallentin-Hermann v. Alitalia and which are also reflected in the rhetoric of Bill C-310 which will be considered below.
The issue of interest is the nature of the defence of necessary measures in the context of mechanical delay cases. That defence failed in the present case. The judge’s remarks make it clear that to succeed a carrier would have to lead very extensive evidence concerning the particular mechanical failure and whether it is one which could have been avoided. Furthermore, the availability of replacement aircraft would have to be considered along with the carrier’s policy respecting the amount of additional capacity it would maintain to address problems arising from aircraft that are grounded by mechanical issues. Even if these issues could be addressed, the carrier might still fail if it could not show that it did everything possible to re-route the passenger on the services of another carrier. In that regard, any lack of relevant training by its airport staff could be fatal to the defence.
Under EU Regulation 261/2004, carriers are liable to pay compensation in the case of certain defined delays, but are excused from responsibility if the delay arose out of “extraordinary circumstances”. Carriers have generally denied compensation claims based on the regulations in those cases where the delay is caused by mechanical failure. In the Alitalia case, the European Court of Justice rejected this argument. The ECJ affirmed that, in order to avoid the compensation requirement, the carrier must demonstrate extraordinary circumstances and must show that the circumstances could not have been avoided by the taking of all reasonable steps.
This attitude, which makes it very difficult to for the carrier to avoid liability in cases of delay, is heavily underscored in the private member’s bill which received first reading in Parliament on February 10, 2009. An Act to Provide Certain Rights to Air Passengers would enshrine the views of the ECJ and the Manitoba Court of Queen’s Bench in Canadian legislation. However, it would also undo the salutary effects of the Lukas and related line of cases by introducing draconian penalties in the event of delay, cancellation and denied boarding.
While Bill C-310 is a private member’s bill which has little chance of enactment, it does represent a popular line of thought. Even if it does die in Parliament, this will likely not be the last time such measures are proposed. It is based very heavily on Regulation 261/2004 of the European Union, that being the regulation interpreted in the Alitalia case referred to above. We summarize below the main provisions of this bill.
First of all, it would apply to all Canadian carriers in their operations world wide. It would also apply to foreign carriers in respect of their operations in Canada. This would make it broader in scope than the European regulations which apply to passengers departing from an EU airport in every case, but which apply to passengers arriving at an EU airport only if the carrier is a community carrier.
Like the EU regulation, it defines three sorts of remedies: reimbursement (including re-routing), assistance and financial compensation. When a flight is cancelled, passengers are to have choices with respect to reimbursement. The passenger can elect full reimbursement for any segment not flown (and segments flown if these “no longer serve any purpose”), re-routing at the earliest opportunity or re-routing at a later date. If a carrier failed to comply, it would be required to make reimbursement plus a $1,000 penalty. Flight cancellation would also trigger the obligation to provide meals, accommodation, and communication facilities. Finally, the passenger would be entitled to financial compensation ranging from $500 to $1,200 depending on the length of the intended flight.
An obligation to provide meals, accommodation and communication facilities would be triggered by delays amounting to more than two hours. If the delay should extend to five hours, the passenger would be given the same reimbursement options as apply to cases of cancellation.
In cases of denied boarding, a passenger who is bumped after a mandatory call for volunteers would be entitled to financial compensation of between $500 and $1,200 as in the case of cancellations. The bill is silent on the question of reimbursement following bumping.
As in the case of the EU regulations, the carrier is obliged to ensure that passengers are given clear notice of their rights, both in the form of a display at check-in and in a written description of the rules to be delivered to all passengers affected.
The Canadian bill would deal with a number of issues not covered by EU Regulation 261/2004. It addresses the popular issue of “tarmac rights”. Carriers would be obliged to ensure fresh air, lights, food, drinking water and clean washrooms. They would also be required to allow disembarkation subject to some limits. Failure to comply would expose carriers to compensation claims of $500 per passenger per hour.
A “truth in advertising” provision is included. In a curious piece of drafting, we are told carriers should include in the advertised price “all costs to the carrier of providing the service”. Whatever that is supposed to mean, the bill goes on to say that all fees, taxes and charges must be identified. Failure to comply would carry a penalty of $10,000 per day.
There are a few provisions which are even more unreasonable than the bulk of the bill. Carriers are to make “every reasonable effort” to provide passengers with information which “could have a significant impact on the travel plans” of a passenger and are to do so within an hour of acquiring the information. Failure to comply would give the affected passenger a right to compensation of $500. Furthermore, there would have to be airport announcements respecting delays, cancellations and diversions which would be made by the carrier within ten minutes “of becoming aware of these events.” Non-compliance would carry an administrative monetary penalty of $1,000. This is perhaps the most Alice in Wonderland aspect of this splenetic proposal. It would be completely impossible to determine which “events” would qualify for announcement and the already clamorous atmosphere of the airport would be ratcheted up several notches. It is a pleasant prospect to imagine the supporters of this measure confined for seven days and nights to quarters beset by uninterrupted announcements of delays, cancellations and diversions.
The entire compensation scheme of Bill C-310 is contrary to the compensation rules of the Montreal Convention as correctly understood and applied by the court in Lukas v. United. Bill C-310 and all similar legislative proposals are expressions of popular indignation which should not prevail.
Lukas v. United Airlines Inc.
[2009] M.J. No. 43
Bill C-310, An Act to Provide Certain Rights to Air Passengers