Bersenas Jacobsen Chouest Thomson Blackburn LLP updates

Carrier's claim of faulty hangar design ruled out of time
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 06 July 2016

The Ontario Superior Court of Justice recently held that for a contractual limitation period to begin to run, it is not necessary that a plaintiff know the precise extent of its loss. In addition, mere discouragement from commencing an action is not enough to prevent the running of a limitation period. This case highlights the importance of staying conscious of limitation periods, even while attempting to find amicable solutions to problems.

CTA rules that NewLeaf requires no licence – yet
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 08 June 2016

NewLeaf Travel Company Inc – a Canadian 'virtual airline' and 'ticket seller' – sells ultra low-cost air services in conjunction with Flair Airlines Ltd. After NewLeaf announced that it would begin flights in February 2016, the Canadian Transportation Agency (CTA) announced that it would review the arrangement to determine whether this particular business model in fact required a licence. The CTA recently issued its ruling.

Passenger who took advantage of mistaken fare ordered to pay costs
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 30 March 2016

In 2014 the Canadian Transportation Agency (CTA) issued the 'mistaken fares' trilogy of decisions, holding that in certain circumstances, air carriers can cancel tickets sold to passengers – and reimburse the price paid – where it could show that there had been a mistake in the price. The CTA recently considered this issue again.

No duty of care to operator for improperly suspended air operator certificate
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 21 October 2015

The British Columbia Court of Appeal recently held that Transport Canada owed no duty of care to International Express Aircharter Ltd (IEA) or its owner following the improper suspension of IEA's air operator certificate. The appeal court agreed with the trial judge that public safety is the "overriding purpose of the power to suspend" an air operator certificate and that the promotion of safety is owed to the travelling public as a whole.

Canadian Transportation Agency may not redact personal information
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 12 August 2015

An air passenger rights advocate recently brought an application for judicial review to the Federal Court of Appeal concerning the Canadian Transport Agency's refusal to provide unredacted documents. In making its decision, the court had to consider the "duality of the Agency's functions" and the application of and relationship between the open court principle and the Privacy Act.

Health and safety direction issued after fatal crash overturned
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 22 July 2015

In a recent case the appellant successfully appealed a direction issued by a health and safety officer pursuant to the Canada Labour Code following a crash in which a pilot employed by the appellant was killed. The direction required it to take measures to correct a hazard or condition that constituted a danger to employee health and safety, which according to the officer was its failure to ensure that flight times were logged accurately.

Quebec Superior Court assumes jurisdiction over accessibility class action
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 08 July 2015

The Quebec Superior Court recently rejected a motion brought by WestJet seeking to have a previously certified class action dismissed on the basis that the Canadian Transportation Agency (CTA) had exclusive jurisdiction over the subject matter of the suit. The court concluded that the CTA did not have exclusive jurisdiction over the claim for damages; the class action certified in 2013 will thus proceed.

CTA approves air cargo filings through IATA TACT manual
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 27 May 2015

The Canadian Transportation Agency recently issued an order that will significantly change the way in which scheduled international cargo carriers file their tariffs in Canada. Tariffs may now be submitted through the Air Cargo Tariff manual of the International Air Transport Association (IATA). Any carrier intending to participate may make arrangements with IATA for it to act as filing agent on its behalf.

Federal Court upholds minister's intent to issue civil aviation safety alert
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 20 May 2015

The Federal Court of Canada recently released a decision relating to the ability of an aircraft parts overhaul and repair facility to prevent the release of a civil aviation safety alert by the minister of transport. The issue arose from a concern by the minister that certain helicopter and drive train parts had been improperly certified. The court's message was clear: those seeking to prevent the minister from issuing a civil aviation safety alert face a high bar indeed.

Court rules on production of documents in air crash case
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 18 March 2015

In 2007 an aircraft owned by Jetport Inc crash-landed in Nova Scotia, resulting in its total loss. Its insurers denied coverage and Jetport sued; in addition, there are related actions involving Jetport's insurance broker. The Ontario Superior Court of Justice recently issued its reasons for decision on a motion by the defendants seeking the production of documents and cockpit and flight data from the Transportation Safety Board.

Supreme Court of Canada applies Montreal Convention
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 05 November 2014

A recent Supreme Court of Canada decision firmly places the Canadian position on the exclusivity of the Montreal Convention on a par with that of other courts of last resort. When determining what remedies are available against air carriers as a result of damages incurred in the course of international carriage by air, if no cause of action exists within the four corners of the Montreal Convention, then no remedy exists.

Tensions between SMS and Access to Information Act
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 08 October 2014

In Porter Airlines Inc v Canada, the Federal Court explored the intersection of the Safety Management System (SMS) and the federal Access to Information Act. The court ruled that while the SMS information that Porter reported to the Department of Transport could not be made publicly accessible, the department's own regulatory conclusions based on that information could be made publicly accessible.

Passenger's failure to mitigate damages affects award
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 01 October 2014

Following an incident in which an Air Canada flight crew's negligence resulted in a faulty landing, a passanger suffered from chronic pain syndrome and sued the carrier. The court heard evidence from a wide range of health professionals who had treated the passenger with limited success. The carrier disputed the claim for compensation on the basis that she had failed to mitigate her damages appropriately.

Extra disclosure ordered in security screening case
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 24 September 2014

The Canadian Human Rights Tribunal issued a procedural ruling in a complaint made against Air Canada by Mohamed Yaffa, who complained that Air Canada "subjected him to enhanced security screening, because of his race, national or ethnic origin, colour and religion, on six different occasions from March to June 2010". The parties had sought disclosure of particular documents before the hearing.

New argument on erroneously filed fares finds favour
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 10 September 2014

A series of passenger complaints brought before the Canadian Transportation Agency over the last year has given rise to a previously unused defence that air carriers can avail of where erroneously low fares are offered for sale on the Global Distribution System.

Cathay Pacific trademark application to be reheard
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 03 September 2014

The Federal Court of Canada recently considered a decision of the Canadian Trademarks Opposition Board (TMOB) to refuse registration of Cathay Pacific Airways' Asia Miles design mark (and four other associated marks). In order for the Federal Court to overturn the decision, it had to find that the TMOB's conclusions on use and confusion were unreasonable.

United Airlines' injunction application not anti-SLAPP
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 27 August 2014

The Quebec Superior Court has ruled again on Jeremy Cooperstock's motion for early dismissal of an application for a permanent injunction brought by United Airlines, Continental Airlines and three United employees. The judge emphasised that anti-strategic lawsuits against public participation legislation should not be allowed to be invoked abusively by defendants.

Force majeure trumps delay claim in Quebec aviation case
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 02 July 2014

A Quebec court recently released a decision interpreting Articles 17 and 19 of the Montreal Convention in the context of an airport labour dispute. The plaintiff – travelling from Montreal to Bucharest via Paris – sought damages for delay and personal injury resulting from having to transfer her own bags from one terminal to another at Charles de Gaulle Airport, Paris.

Court dismisses denied boarding claim
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 18 June 2014

An Ontario court recently found that WestJet did not act unreasonably by denying boarding to a Canadian citizen who had attempted to board a flight home from Jamaica on the strength of his Canadian citizenship card. It found that in doing so, the airline was following directions of the Canadian Border Service Agency, which has encouraged airlines to be vigilant in screening passengers on this route.

Appealing CTA decisions
Bersenas Jacobsen Chouest Thomson Blackburn LLP
  • Aviation
  • Canada
  • 21 May 2014

Decisions of the Canadian Transportation Agency (CTA) may be appealed directly to the Federal Court of Appeal, but only with that court's leave and where the point in issue is either the CTA's jurisdiction or a question of law. A recent Federal Court of Appeal decision in which leave to appeal was denied illustrates that the court is not inclined to stretch the concept of what amounts to a legal issue in order to assert its jurisdiction.

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