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Air France Class Action Developments
Published in the July 2010 issue of Transportation Notes - View Article
Almost exactly five years ago, on August 2, 2005, an Air France Airbus A340 landed in Toronto in bad weather and went off the end of the runway. Although the aircraft was destroyed, there were no fatalities. A number of proceedings, including a class action, to recover damages for bodily injury, emotional distress, and property loss followed. Among the defendants were Air France, Goodrich, Airbus, the Greater Toronto Airports Authority, and NAV Canada. The class action has been settled as against all defendants with the exception of NAV Canada.
The settlement approval order, released on December 24, 2009, included a bar order which prohibits further discovery of the settling defendants. This was challenged by NAV Canada on the basis that the bar would prevent it from properly preparing for trial. The structure of the settlement involves Air France making a payment in respect of Convention Damages (i.e. damages recoverable under the applicable international convention). Other settling defendants paid in respect of exposure to Extra-Convention Damages (defined as damages not recoverable under the convention). The plaintiffs have agreed to limit their claim against NAV Canada to a claim in respect of Extra-Convention Damages. Thus issues to be tried in the claim against NAV Canada include the determination of what constitutes Convention Damages and whether Air France might, but for the settlement, have been responsible for any Extra-Convention Damages. Against this background, NAV Canada brought an appeal contesting the bar order component of the order approving the settlement.
That appeal was heard by the Ontario Court of Appeal on June 2 of this year and an order dismissing the appeal was issued on June 4. NAV Canada argued that the bar order would prevent it from raising the issue of Air France’s potential liability for Extra-Convention Damages. The Court of Appeal disagreed. Although it is clear that Air France is released from any liability to pay such damages, there is nothing to prevent the trial judge from allocating fault to Air France for a share of the Extra-Convention Damages. Such an allocation may be necessary to determine NAV Canada’s several liability for Extra-Convention Damages.
The judge who approved the partial settlement stated in her reasons that the Court would not be asked to apportion liability as between Air France and other defendants for Extra-Convention Damages. The Court of Appeal noted this comment but went on to say that there is nothing in the formal order to prevent such apportionment.
NAV Canada also argued that the bar order would unfairly prevent it from properly preparing for trial. This argument was rejected as well. The Court noted that NAV Canada had in fact conducted eight days of discovery of Air France and, in four years of litigation, had never elected to examine any of the other settling defendants. These facts, in addition to the noted fact that there is a very full account of the accident in the report of the Transportation Safety Board, led the Court to reject this argument as well. Thus the partial settlement, including the bar order, has now been approved by the Court of Appeal.
The next development in the class action was a decision of July 14, 2010 by the case management judge which again involves the issue of examinations for discovery.
The pending claim against NAV Canada is to be tried in two stages. There is first to be a common issues trial in which such issues as NAV Canada’s duty of care, the applicable standard of care, the existence of breaches, and causation are to be determined. The list of common issues has been expanded to include the question of whether NAV Canada is entitled to rely on the Warsaw and Montreal Conventions and what damages are recoverable as Convention Damages. The question of the damages suffered by individual class members will not be considered at the common issues stage.
NAV Canada sought to discover the class representative in respect of a number of issues, including aspects of their damages. This it justified with the argument that in order to determine its potential exposure it needs to explore the question of what damages might be recoverable as Convention Damages and what as Extra-Convention Damages.
The case management judge rejected NAV Canada’s claims and treated its argument as an attempt to obtain discovery on matters which are not common issues. He cited a number of recent decisions which endorse the view that where common issues have been defined for determination before determination of the individual issues, the first stage of discovery should be confined to the common issues. A few authorities which were advanced for the opposite view were distinguished. The judge concluded that “damages suffered by the representative plaintiffs are individual issues and the nature, extent and form of discovery of those issues will be determined following the common issues trial.”
NAV Canada is accordingly directed to limit questions to the common issues. The case management judge concluded his reasons with the following suggestion: “In the interests of efficiency, and with a view to obtaining clear admissions for the purposes of the common issues trial, counsel for NAV may wish to consider proceeding by way of written questions, as suggested by counsel for the plaintiffs.”
There is at present another development in progress. In addition to the class action there are a number of “outlier” cases which are being pursued as individual claims. These are at an earlier stage of development. In one case the question of whether service was properly effected is set for a hearing in the Court of Appeal in the fall. The question which thus arises is whether these outlier actions should be managed jointly with the class action and whether there should be a common liability trial of all the actions, including the class action.
NAV Canada supports common management and has filed a motion for an order directing a common liability trial. This seems to be supported by most of the plaintiffs in the outlier actions. It is opposed by the class plaintiffs who point out that their action is almost ready for trial and that any form of joint case management will lead to delay. This position appears to be supported by most of the defendants with the exception of NAV Canada. Letters have been written to the Senior Regional Judge requesting both and opposing joint case management. It is difficult to see how that question will be satisfactorily dealt with until the result of the motion for a joint liability trial is disposed of. A decision to proceed with a joint liability trial would likely have significant procedural implications and if this is the outcome joint case management will probably be essential. On the other hand, if there is to be no joint liability trial it is not apparent what purpose may be served by joint case management.
Since proceeding with a joint liability trial would almost certainly involve significant delay such a result is certain to be strongly opposed by a number of parties and the outcome at first instance may be appealed. We could be well into 2011 before resolution of the current procedural issues is achieved.
Abdulrahim v. Air France,
2010 ONCA 403
Abdulrahim v. Air France,
2010 CarswellOnt 5320