On January 14, 2011, Ashlyn O'Hara was a passenger on Air
Canada Flight 878 ["AC878"] from Toronto to Zurich.
During the flight, the First Officer went to sleep for
approximately 75 minutes. When the First Officer awoke, the
Captain informed him that a United States Air Force Boeing C-17 had
appeared as a traffic alert and collision avoidance system target
on the flight's navigational display. Shortly thereafter, the
First Officer mistook the planet Venus, visible in the sky ahead,
as the Boeing C-17. Despite the Captain's continuing
reassurances to the contrary, the First Officer continued to
incorrectly identify Venus as the Boeing C-17. Suddenly, the First
Officer violently forced the aircraft's control column forward,
causing AC878 to enter a sudden and steep dive. The Captain was
forced to execute an emergency manoeuvre to restore the aircraft to
a straight and level heading. As a result, passengers and
objects within the aircraft were violently shaken and thrown in the
Several passengers alleged that they suffered serious
psychological and physical injuries as a result of the incident.
Ms. O'Hara commenced a class action on May 7, 2012. On behalf
of her fellow passengers, she claimed for:
physical and psychological injuries resulting from the emergency
punitive, aggravated and/or exemplary damages resulting from the
manner in which the airline communicated with the passengers and
the public about the cause of the incident and the manner in which
the airline obtained releases from some passengers.
Air Canada brought a motion for an order striking out parts of
the claim pursuant to the Montreal Convention and the
Warsaw Convention [the "Conventions"].
The Ontario court had to consider the application of the
Conventions to the passengers' claims.
The court first confirmed that under the Conventions,
there could be no valid claim for purely psychological injury, or
for punitive or exemplary damages. However, there could be a claim
for aggravated damages.
The Court struck the passengers' claims for psychological
and emotional injuries. It considered whether the claims as pleaded
could describe psychological injuries that reached the threshold
of "bodily injury" as required by the
Conventions. It concluded that they could not.
The Court then addressed the passengers' claim for
aggravated damages, considering that aggravated damages were meant
to be additional compensatory damages where the injury was
sustained in "humiliating or undignified circumstances."
In the Statement of Claim, the claims for aggravated damages were
simply listed along with the passengers' claims for exemplary
and punitive damages. There was no separate paragraph dealing with
those claims or explaining or particularizing the basis for those
claims. As a result, the Court agreed with the defendants that
there was really no articulable claim for aggravated damages, and
the Court struck those claims.
Finally, the Court addressed the passengers' assertion that
punitive and exemplary damages were available to them at common law
under the law of negligence despite the clear language of the
Conventions. Because the passengers had pleaded that the
airline was negligent in various ways after the flight and in
circumstances that did not occur on board the plane, the
passengers pleaded that Conventions did not apply to those
The Court disagreed, finding instead that any common law claim
was precluded by the Conventions. The Court explained that
international case law has routinely held that where liability of
an airline for international carriage is in issue, the conventions
are exclusive and preclude the application of domestic law.
Furthermore, the Court found that any failures by the airline to
advise passengers of the true cause of the in-flight episode after
the flight were causally connected to the episode itself. This
nexus served to reinforce the application of the
While perhaps not surprising in the result, this case reinforces
the Conventions as a complete code for an airline's
liability for damages arising from international carriage by
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