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Case Comment: Res Judicata

Published in the August 2009 issue of Transportation Notes - View Article

On August 5, 2009, the Canadian Transportation Agency issued a decision that should mark the end of David Pinchefsky’s attempt to extract compensation from Air Canada for what are simply described as “difficulties” which he encountered at the Montreal International Airport.

The complaint before the Agency was brought more than two years after the events complained of and Air Canada did raise a defence based on Article 35 of the Montreal Convention, which provides that any right to damages is extinguished if an action is not commenced within two years of the relevant start date. It would have been interesting to see how the Agency might have dealt with this defence, but the issue was not reached as the Agency agreed with Air Canada that the complaint should be dismissed by reason of the doctrine of res judicata.

Within the two-year period specified by Article 35, Mr. Pinchefsky brought an action in the Quebec Small Claims Court seeking damages arising out of the same interactions that formed the basis of the complaint before the Agency. This action was dismissed on the grounds that his complaints were based on the allegation that he suffered inconvenience arising out of poor customer service. The Court found that his complaint was governed by the Montreal Convention and that any harm he suffered arose from mental injury. As such damages are not recoverable under the Convention, his action was dismissed and that dismissal formed the basis of Air Canada’s argument that the Agency should not rehear the same complaint.

Where res judicata applies, it may act as an estoppel, preventing a party from re-litigating a matter. The Agency set out the current Canadian law respecting the law of res judicata. In order for this doctrine to apply, it must be shown:

that the same question has been previously decided;
that the decision was a judicial decision which is final;
that the parties to the previous decisions were the same as the parties to the proceeding in which the estoppel is raised.

At one time it was thought that if these conditions all applied, a party would have an absolute right to an order barring further litigation. As the Agency recognized, this is no longer the case in Canada. Courts and tribunals have a residual discretion to refuse to apply the doctrine if it would be unfair to apply it.

There was no serious doubt about the three conditions. The facts and circumstances relied upon before the court and before the Agency were not identical, but they were similar and gave rise to the same questions of law. The judgment of the Quebec court is, in the Quebec Code of Civil Procedure, specifically stated to be “final and without appeal” and the parties were clearly the same.

Having dealt with these preconditions of the application of the doctrine, the Agency turned to consider whether there were any circumstances that should lead it to refuse to apply the defence. In particular, it considered whether Mr. Pinchefsky had been given a fair opportunity to present his case in the court proceedings. In reviewing the suggestion that Pinchefsky encountered any unfairness in the court proceeding, the Agency noted that he knew the case he had to meet and had been given an opportunity to state his own case.

In particular, Pinchefsky raised the issue of an alleged language barrier. He complained of the fact that Air Canada’s representative at the trial spoke only in French—a language neither he nor his wife understood very well. He stated that all legal argument was presented in French and felt he had been unfairly dealt with in that the court seemed to accept only the authorities put forward by Air Canada, while rejecting his own authorities. Finally he suggested that the Air Canada representative provided false information to the Court. How he came to this conclusion, in view of his alleged non-comprehension of the proceedings, is not explained.

Air Canada pointed out that at the commencement of the proceedings, the presiding judge asked the claimants if they understood French and they responded that they did. At no time during the trial did they inform the court of any difficulty in understanding, nor did they request a translation of the arguments.

In these circumstances, the Agency concluded there were no special circumstances that should lead it to exercise discretion to refuse to apply the doctrine of res judicata. The claim was dismissed and that should certainly mark the end of this story.

Canadian Transportation Agency
Decision No. 337-C-A-2009