Canada: The Aviation Law Review - Canada Chapter

Last Updated: September 18 2014
Article by Laura Safran and Prasad Taksal

Article by Laura Safran and Prasad Taksal1

I INTRODUCTION

i Legislation

Under the Canadian Constitution Act, 18672 aviation is a federal government area of responsibility. Transport Canada is a department of the government of Canada under the federal Minister of Transport, Infrastructure and Communities. It is responsible for the issuance of transportation (including aviation) operating permits and certifications and for transportation safety oversight. The principal legislation administered by Transport Canada with respect to aeronautics is the Aeronautics Act,3 and the Canadian Aviation Regulations4 (CARs) promulgated thereunder. The Carriage by Air Act5 implements, inter alia, the provisions of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) as part of domestic law in Canada. The Canadian Air Transport Security Act6 establishes and defines the authority and the powers of the Canadian Air Transport Security Authority, the agency responsible for aviation security in Canada. Canada ratified the Convention on International Interests in Mobile Equipment and the Aircraft Protocol (collectively, the Cape Town Convention) on 1 April 2013. The Cape Town Convention is now part of the domestic law of Canada pursuant to the provisions of the International Interests in Mobile Equipment (aircraft equipment) Act.7

ii Licensing

The licensing of air operators for the provision of domestic air services and scheduled and unscheduled international air services is governed by the provisions of the Canada Transportation Act8 and the Air Transportation Regulations9 (ATRs) made thereunder. To operate an air service that is publicly available, a licence must be issued by the Canadian Transportation Agency (CTA), an independent agency established under the Canada Transportation Act. Licences for international scheduled services generally are issued pursuant to bilateral air service agreements made between Canada and foreign states and are route-specific, in accordance with the commercial rights identified in these agreements.

iii Air charter

The ATRs specify a stringent set of rules that nominally apply to air charter services. However, the impact of these rules is largely alleviated by the provisions of Canada's International Cargo Charter Policy and International Passenger Charter Policy (the Policies), which were announced in May 1998 and April 2000 respectively. The CTA is in the process of amending the ATRs to conform to the Policies but, in the interim, the CTA has been authorised to grant general exemptions from the application of those provisions of the ATRs that conflict with the Policies.

iv Airport slot allotments

Airport slots are allocated by individual airport authorities in Canada and there is no uniform slot allotment policy or system applicable to all Canadian airports. Some Canadian airports have airport adviser status with IATA and participate in semi-annual IATA Slot Conferences, at which carriers, airports, coordinators and industry experts discuss schedule adjustments. Upon negotiating, trading or transferring slot times at the IATA Slot Conferences, carriers can then apply to the applicable airport authorities for a slot. Slot allocation at the Canadian airports using Slot Clearance Request/Reply system is regulated by the IATA Scheduling Guidelines.10

v Air navigation services

Civil air navigation services are carried out by NAV Canada, a private sector corporation established under the Civil Air Navigation Services Commercialization Act.11 Service charges are levied against air carriers and aircraft operators to recover costs incurred by NAV Canada in providing air navigation services.

vi Accident investigations

The Transportation Safety Board (TSB) is an independent agency established under the Canadian Transportation Accident Investigation and Safety Board Act.12 The TSB is responsible for conducting independent investigations of aviation incidents and accidents and publicly reporting its findings, identifying safety deficiencies and making recommendations for eliminating such deficiencies.

II LEGAL FRAMEWORK FOR LIABILITY

i International carriage

Canada is a party to and has ratified the Montreal Convention, which is made part of the domestic law of Canada by the Carriage by Air Act.13 Section 2 of the Carriage by Air Act provides that the provisions of the Montreal Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons have the force of law in Canada. Subsection (5) of Section 2 provides that any liability imposed by the Montreal Convention on a carrier for the death of a passenger shall be in substitution for any liability of the carrier for such death under any law in force in Canada. Subsections (6) and (7) provide for the conversion of francs and special drawing rights into Canadian dollars at rates established by the International Monetary Fund.

ii Internal and other non-convention carriage

There are no special rules with respect to death or injury to passengers and loss or damage to baggage or cargo for domestic carriage. Those claims are largely resolved in accordance with principles of the common law of contract and negligence, as interpreted by the courts of each province. The courts of Quebec apply civil law principles and concepts but the end result for an aviation claim in Quebec is not likely to substantially differ from that of a similar case in a common law province. In recent years the CTA has intervened in a number of domestic air accident cases to require air carriers to apply international liability rules. To date, such intervention has been limited to cases in which the claim is for damage to, loss of, or delay in the transportation of baggage.

Under the Criminal Code,14 the dangerous or negligent operation of an aircraft or knowingly sending an aircraft that is not airworthy on a flight are criminal offences and any such incidents that result in injury or death may result in a criminal investigation and possible criminal charges, if the circumstances so warrant.

iii General aviation regulation

In Canada, civil aviation operations (including the operations of advanced and basic ultralight aircraft, gliders and unmanned aerial vehicles) are governed by the provisions of the Aeronautics Act15 and the CARs and the standards issued thereunder. The CARs regulate the identification and registration of aircraft, licensing and training of personnel, airworthiness of aircraft, general operating and flight rules, commercial air services and air navigation services.

iv Passenger rights

The CTA makes decisions concerning air, rail and marine matters and its jurisdiction extends to economic regulation and consumer protection. With respect to aviation, the CTA issues licences and permits, has authority to disallow tariffs and imposes rules relating to the accessibility of air services. Passenger rights are governed primarily by the provisions of the Canada Transportation Act16 and the ATRs, which require every air carrier to file a copy of its tariff with the CTA. Air carriers are required to include all of the terms and conditions of carriage in their tariff, including those relating to the carriage of persons with disabilities, compensation payable for denial of boarding, passenger rerouting, failure to operate on schedule, refunds, ticketing procedures, limits of and exclusions from liability, and so forth. The CTA has the jurisdiction to address complaints and disputes relating to transportation services, rates, fees and charges, terms and conditions of carriage, accessibility and other issues arising out of or in relation to the tariffs.

Air carriers providing charter services are required to provide financial guarantees in respect of advance payments received from tour operators. Carriers are also required to price charter contracts on the basis of tariffs in effect on the date the contract is entered into. Those tariffs must be maintained by the carrier but need not be filed with the CTA.

Additionally, the provisions of consumer protection legislation in certain provinces may be applicable also to air carriers, provided that such provisions do not conflict with federal law or encroach on federal jurisdiction. See Section VIII, infra, for a recent example.

III LICENSING OF OPERATIONS

i Licensed activities

A licence is required under the Canada Transportation Act17 to operate publicly available air services, which includes domestic air services (small, medium, large and all-cargo aircraft) and scheduled and unscheduled international services. Also see Section VIII, infra.

ii Ownership rules

A licence to operate a domestic air service may only be granted to a Canadian, unless the applicant has been exempted from that requirement by the Minister. A 'Canadian' is defined in the Canada Transportation Act as a Canadian citizen or permanent resident, a government in Canada or an agent of such government or a corporation or other entity incorporated or formed under the laws of Canada or a province or territory of Canada that is controlled by Canadians and of which a minimum of 75 per cent of voting interests are owned and controlled by Canadians. The licence will only be granted to an applicant that is controlled de facto by Canadians.

Also see Section IX, infra.

iii Foreign carriers

A person may not operate an aircraft (other than a hang-glider or a parachute) in Canada unless it is registered in Canada or in a foreign state that is either a contracting state or has an agreement with Canada that allows aircraft registered in that foreign state to be operated in Canada.

To be eligible for a licence to operate a scheduled international service, a foreign air carrier must obtain the appropriate Canadian aviation document from Transport Canada, have the prescribed liability insurance coverage in place, meet the prescribed eligibility conditions and satisfy the CTA that the foreign air carrier has not contravened the provisions of the Canada Transportation Act relating to sale of air services in Canada without an appropriate licence. To satisfy the eligibility conditions, the foreign air operator must be designated by a foreign government to operate an air service in terms of a bilateral air service agreement between that country and Canada and hold a scheduled international licence issued by that foreign government. Extra-bilateral authority in the form of additional city pairs and fifth or seventh freedom rights can be obtained on occasion on application to the CTA.

To obtain a foreign air operator certificate, a foreign carrier may be required to pass a base maintenance and safety-related inspection carried out by Transport Canada.

IV SAFETY

Transport Canada is responsible for regulating aviation safety and airworthiness requirements for all civilian aircraft in Canada. The CARs and the associated standards form a comprehensive code for the regulation of aviation safety. Airworthiness requirements are described in Part V of the CARs. The requirements include obtaining an airworthiness certificate for each aircraft operated in Canada and submission of an annual airworthiness report (except in cases of an ultralight aircraft). In addition to the airworthiness requirements prescribed in Part V of the CARs, any use of an aircraft for a commercial air service is subject to the certification scheme created by the Aeronautics Act18 and associated regulations. For aerial work (consisting of helicopter external loads, towing or dispersal of products and involving the carriage of persons other than crew members) an operator certificate is required subject to limited exceptions. Private operators that provide passenger transportation using large or turbine-powered pressurised aircraft are regulated by Transport Canada pursuant to the provisions of Interim Order No. 10 Respecting Private Operators, pending the introduction of new regulations.

The Transportation Safety Board Regulations19 require reporting of aviation accidents and incidents. Where a reportable incident occurs, an obligation to preserve evidence is triggered. The Transportation of Dangerous Goods Act, 199220 imposes reporting requirements in certain cases of release of, or improper transport of, dangerous or hazardous goods. In addition, safety management systems referred to in Part V of the CARs include the requirements that approved maintenance organisations report to Transport Canada as to certain service difficulties encountered in the course of maintaining an aircraft.

The maintenance of aircraft is regulated by Part V of the CARs and by the standards thereunder. A Transport Canada-approved Airworthiness Manual addresses the licensing and training standards that aircraft maintenance engineers must meet. Part V of the Manual defines the conditions under which different categories of work must be performed, as well as documentation requirements. In the case of commercial aircraft, all work must be done in accordance with a maintenance policy manual.

V INSURANCE

In order for the CTA to issue a licence to provide domestic or international services, air carriers are required to carry liability insurance. Section 7 of the ATRs21 provides for a minimum liability insurance for commercial operators in the amount of C$300,000 per seat for passenger liability. In respect of public liability, the mandatory coverage is a minimum of C$1 million for aircraft with maximum certified take-off weight of less than 7,500 pounds and a minimum of C$2 million for aircraft with maximum certified take-off weight of more than 7,500 pounds. In cases of aircraft with maximum certified take-off weight in excess of 18,000 pounds, the minimum amount of insurance is C$2 million, plus an amount equal to C$150 multiplied by the number of pounds by which the weight of the aircraft exceeds 18,000 pounds.

Air operators, flight training unit operators, operators of balloons carrying farepaying passengers and operators of aircraft in excess of 5,000 pounds maximum certified take-off weight are required to have passenger liability insurance in place in the amount of C$300,000 per seat. Insurance coverage need not extend to any passenger who is an employee of the operator and covered by worker's compensation legislation or to passengers carried on board for making a parachute descent, provided that the operator has provided notice to such persons of the absence of such insurance. All private operators are required to carry public liability insurance, which is related to aircraft weight and the nature of the operations undertaken.

Liability insurance can only have limited exclusions or waiver provisions consisting of standard exclusion clauses relating to chemical drift, excluding contractual liability and voiding of insurance on account of misrepresentation by the air carrier.

Following the 11 September 2001 terrorist attacks, the government of Canada established a temporary indemnification mechanism for essential air service operators in Canada for third-party aviation war risks liability to the extent not covered under the general liability insurance carried by such operators, which has been renewed from time to time. The current indemnity came into effect on 1 January 2014 and expires on 31 December 2015.

VI COMPETITION

The aviation industry in Canada is subject to the provisions of the federal Competition Act,22 as well as certain sector-specific competition rules. In response to the merger of Air Canada and Canadian Airlines in 1999, the government of Canada passed the Regulations Respecting Anti-Competitive Acts of Persons Operating a Domestic Service23 to define specific anti-competitive acts that would be subject to the abuse of dominance provisions. There are also provisions in the Canada Transportation Act24 that deal with mergers in the aviation sector. Access to the aviation sector is further regulated by certain financial and nationality requirements. Access to the market for international air services is governed by bilateral air service agreements between Canada and various foreign states.

The general regulator of competition matters in Canada is the Competition Bureau, headed by the Commissioner of Competition. Proposed mergers and acquisitions that meet prescribed thresholds must be notified to the Commissioner under the Competition Act, and simultaneously notified to the Minister of Transport, Infrastructure and Communities and the CTA under the Canada Transportation Act. The Minister is required to make a determination as to whether the proposed transaction raises issues with respect to the public interest as it relates to national transportation. A proposed transaction may not be completed unless it is approved by the Governor-in-Council on the recommendation of the Minister, and the CTA determines that the transaction would result in an undertaking that preserves the 'Canadian' nature of the operator as required by the Canada Transportation Act.25

Under the Competition Act,26 a person who conspires with a competitor to fix prices, allocate customers, sales or territories, or control or prevent supply is guilty of a criminal offence punishable by imprisonment or a fine, or both.

VII ESTABLISHING LIABILITY AND SETTLEMENT

i Procedure

Claims relating to passenger air travel, terms and conditions of carriage, charter flights and transportation of persons with disabilities are adjudicated by the CTA. In addition, the CTA also investigates alleged or suspected violations of terms and conditions of licences or illegal or unlicensed operations by carriers providing publicly available services. In the event of consumer complaints, claimants are encouraged by the CTA to attempt to resolve the dispute directly with the air carrier before approaching the CTA. A complaint must be filed as soon as possible after the incident. In the event the Montreal Convention applies to the complaint, it must be filed within two years of the date of the incident.

Upon receipt, the CTA investigates the complaint and if the complaint is warranted, attempts to facilitate a settlement between the claimant and the air carrier. In the event the claimant is not satisfied, the claimant may resort to the formal process for resolution of the complaint, conducted by a panel of members of the CTA and involving submission of evidence and written arguments. In certain matters where the issues involved are of general public interest, the CTA panel may hold a public hearing. Once the CTA panel has considered the evidence, it issues a written decision. CTA decisions are binding unless overturned.

The CTA does not entertain complaints relating to issues such as customer service, aircraft cabin standards, aircraft noise, problems at airports, unfair competitive practices and bilingual services. The CTA also does not hear complaints against tour operators and travel agents. Depending upon the nature of the complaint, a complainant may approach a provincial court, a superior court, Transport Canada, the Competition Commission or other tribunals that have jurisdiction over such matters.

ii Carriers' liability towards passengers and third parties

An operator's liability to a passenger for incidents arising in the course of international carriage is established and limited in accordance with the provisions of the Montreal Convention. Operators are strictly liable for proven damages up to the prescribed amount under Articles 21 and 22 of the Montreal Convention, unless a special declaration of interest is made at the time of handing over baggage or cargo to the operator.

There are no specific rules governing the liability of aircraft operators for surface damage; however the Airport Traffic Regulations,27 which were made under the Government Property Traffic Act,28 prescribe rules for the operation of motor vehicles, pedestrians and mobile equipment at airports. Contravention of those rules may result in a fine or imprisonment or both. In addition the Airport Traffic Regulations address requirements specific to the control of aircraft on aprons.

There is no special legislation in place governing an operator's liability to third parties so that such liability is governed by the common law of torts. With respect to accidents and incidents, however, it is important to note that under Section 7(2) of the Canadian Transportation Accident Investigation and Safety Board Act,29 the TSB cannot make any findings on civil or criminal liability and under Section 7(3) no finding of the TSB can be construed to assign blame or liability. The findings of the TSB also do not bind any party to a legal proceeding.

iii Product liability

Manufacturers and owners are subject to the provisions of the Aeronautics Act and the CARs and may not operate an aircraft except in compliance with the same. A person who makes false representations for obtaining a Canadian aviation document, falsifies records, operates or deals with a detained aircraft or acts in contravention of a Canadian aviation document is guilty of a criminal offence punishable by a fine, imprisonment or both.

There is no special legislation in place governing a manufacturer's or owner's liability to third parties and such liability would be governed by the common law of torts.

iv Compensation

In cases of consumer complaints adjudicated by the CTA, the CTA may, depending on the circumstances, order the air carrier to compensate the consumer for out-of-pocket expenses incurred by the consumer. The CTA cannot, however, award damages for pain and suffering or impose punitive damages or penalties on air carriers.

In Canada, damages are quantified in accordance with the principles of common law of contracts and torts and there are no special rules applicable to claims related to the aviation industry. Typically, the actual loss or damage suffered by the claimant will play a significant role in determining the amount of damages that may be awarded. The plaintiff is required to prove that the defendant caused the loss or damage and that such loss or damage was reasonably foreseeable. Punitive damages are less common and may be awarded only in situations in which the plaintiff's conduct is excessively malicious or oppressive.

Canada has a universal publicly funded health-care system administered by the governments of all of the provinces and territories. The government has a right to recover health-care costs with respect to a person who is injured as result of the acts or omissions of a third party.

VIII THE YEAR IN REVIEW

i Determination of what constitutes an 'air service'

In October 2013, the CTA issued a determination on the meaning of an 'air service' under the Canada Transportation Act.30 The Canada Transportation Act defines an air service as a service that is provided by means of an aircraft that is publicly available for the transportation of passenger or goods,31 and provides that no person may operate an air service unless such a person has obtained a licence issued under the Canada Transportation Act.

The CTA has determined that a service is an air service when it includes the following four criteria:

  1. the service is offered and made available to the public;
  2. the service is provided by means of an aircraft;
  3. the service is provided pursuant to a contract or arrangement for the transportation of passengers or goods; and
  4. the service is offered for consideration.

The term 'publicly available' has not been defined in the Canada Transportation Act. The CTA has interpreted this term on a case-by-case basis, depending upon the specific facts in each application, but the requirement to respect confidentiality has precluded the CTA from providing detailed reasons in its public decisions. The CTA also noted that the evolving nature of the industry necessitated a re-examination of the concept of 'publicly available', and that a publicly available service is one that is offered to the public (i.e., the public is made aware of the existence and availability of the service and members of the public can choose to avail themselves of the service). The CTA has also identified the following factors to be indicative of a publicly available service:

  1. the person offering the service solicits, promotes or advertises the service by any means;
  2. there are known routes, published schedules, published terms and conditions of carriage or a ticket distribution system in existence in relation to the service;
  3. the service is offered to a segment or portion of the general public – extensive promotion is not necessary and there can be restrictions as to who may access the service; and
  4. the persons being offered the service should be able to avail themselves of the service and should be able to contact the service provider to arrange for air transportation.

The CTA further stated that a person who is not engaged in the business of transporting passengers or goods would not be deemed to be operating a publicly available service only by agreeing to transport a person in a specific instance. The CTA has clarified that the use of a personal aircraft for the transportation of family, friends and acquaintances, or the use of a corporate aircraft for the transportation of an organisation's directors, officers, employees, contractors and clients (in the event the travel is not pursuant to a contract for consideration) in the conduct of the organisation's business will generally be considered private carriage and not a publicly available service.

ii Erroneous IATA Flex Fares for first-class travel from Yangon, Myanmar to Montreal Canada

In June and July 2013, the CTA issued decisions in respect of complaints filed by seven passengers against Swiss International Air Lines Ltd (Swiss)32 and by one passenger against Jet Airways (India) Limited (Jet Airways)33 relating to the cancellation of the passengers' tickets by the airlines. All of the tickets were for one-way first-class travel from Yangon, Myanmar to Montreal, Canada. The tickets were issued with first-class IATA Flex Fares that were erroneously distributed in September 2012 by the Airline Tariff Publishing Company, with fares of between US$115 and US$150 per ticket (exclusive of applicable taxes, fees and charges), and all of the tickets were purchased on 28 September 2012 following the publication of a passenger blog publicising the erroneous fares. Upon becoming aware of the erroneous fares, the airlines caused the erroneous fares to be withdrawn. Subsequently, the airlines cancelled the tickets and issued full refunds to the passengers who had purchased the tickets with erroneous fares.

The CTA found that neither airline properly applied the terms of its tariff in cancelling the tickets with the erroneous fares. The CTA found that the Jet Airways tariff on file with the CTA at the time of purchase of the tickets did not include a provision that entitled the airline to cancel tickets with erroneous fares. Although Swiss's Tariff Rule 5(F) allowed the airline to cancel tickets with erroneous fares by reason of 'technical failure', the CTA found that the airline had failed to established that the erroneous fares were published as a result of a technical failure. The CTA also disallowed Tariff Rule 5(F) on the grounds that it was unreasonable. The CTA ordered both airlines to reinstate the cancelled tickets and transport the complainants in first class on dates selected by the complainants. The CTA further ordered Swiss to show cause as to why its Tariff Rule 5(F) should not be disallowed on the grounds of being unfair. Swiss filed a motion for a reconsideration of the CTA's decision together with submissions in response to the show cause, but both were rejected by the CTA.

Swiss has filed an appeal against the CTA's decision with the Governor-in-Council by way of a petition, which is currently pending. Similar complaints were then filed against other airlines, as well as 83 additional complaints filed against Swiss. In May 2014, the CTA dismissed complaints filed against US Airways and Swiss by complainants who had previously commenced and lost legal proceedings against the airlines in other jurisdictions on the grounds that the complaints filed with the CTA were barred on the basis of res judicata.34 Thereafter, the CTA dismissed another complaint against US Airways35 and all 83 complaints against Swiss36 on the grounds that the contracts of carriage between the complainants and the airlines were void as a result of fundamental mistakes in the contracts. The CTA found that the complainants knew, or should have reasonably known, that the fares for first-class travel between Yangon and Montreal were erroneous and that the complainants attempted to take advantage of the mistake. Further, in the Swiss decision, the CTA also clarified that although it had ruled in favour of the seven complainants in the earlier decision,37 Swiss had not submitted arguments with respect to the validity of the contract of carriage in the earlier case.

The CTA also set out certain expectations related to erroneous fares in light of the fact that mistaken fares are an ongoing issue. The CTA stated that it expects carriers to notify the passengers of cancellations due to erroneous fares within 72 hours after becoming aware of the mistake or at least 24 hours prior to departure if the ticket was purchased within 72 hours prior to departure, and to provide refunds to passengers of the total costs of the tickets. In cases concerning interline itineraries, the CTA expects airlines to coordinate among themselves and decide which carrier will notify the passengers and provide the refunds.

iii CTA decisions related to airline tariffs

In several recent proceedings before the CTA, the provisions of domestic and international tariffs filed by certain airlines have been challenged on various grounds, such as compensation for denied boarding, delays and schedule changes and cancellations.

In decisions issued in July 201338 and November 2013,39 the CTA reviewed provisions of Air Canada's international tariff relating to denial of boarding, boarding cut-off times and clarity of its tariff regarding same. The CTA found that Air Canada's tariff respecting denial of boarding created 'uncertainty' as to a passenger's obligations to present himself or herself for check-in and boarding, and directed Air Canada to specify that the passenger was required to present himself or herself 'at the check-in counter and boarding gate before the cut-off times set out in Rule 60'. The CTA also found that a passenger missing a connecting flight because of a delay in the arrival of his or her flight at the connecting terminal was a case of missed connection and not denial of boarding, and in that case, no compensation was payable to the passenger for denial of boarding.

The CTA also found Air Canada's denial of boarding compensation amounts for passengers travelling from Canada to the European Union to be unreasonable, since the amounts were lower than the compensation amounts payable to passengers travelling from the European Union to Canada. In response to the CTA's decision, Air Canada submitted a revised compensation structure providing for a cash compensation of C$400 (or equivalent) for a delay in arrival of up to four hours and C$800 (or equivalent) for more than four hours, which was accepted by the CTA.

In January 2014, the CTA reviewed the British Airways international tariff40 in regard to the clarity and the reasonableness of tariff provisions relating to schedule changes, delays, cancellations and denied boarding compensation. The CTA found that the wording of the tariff limiting the airline's liability in accordance with the limits set forth in the Montreal Convention ('except as the Convention or other applicable law') created an impression that the application of the Montreal Convention was an exception, when in fact it was the rule. The CTA held that the tariff provision in question was unreasonable since it capped the airline's liability for passenger delay to the limits set forth in Article 22(1) of the Montreal Convention, in contravention of Article 22(5) of that Montreal Convention, which provides that the limitation under Article 22(1) shall not apply if it is proved that the damage to the passenger resulted from an act or an omission of the carrier.

The CTA also stated that that carriers should include provisions in their tariffs that provide passengers with the right to be informed of flight times and schedule changes, and that carriers should make reasonable efforts to inform passengers of delays and schedule changes and the reasons for them. The CTA stated that an air carrier can only avoid liability for a delay if it can prove that all reasonable measures were taken to avoid that delay, or that it was impossible to take such measures (the test set forth in the Montreal Convention), and concluded that the provision in the British Airways tariff excluding liability for missed connections was contrary to the Montreal Convention.

The CTA found that the compensation amounts in the airline's tariff for denial of boarding were unreasonable since the tariff provided for compensation in the amount of 100 per cent of the sum of the value of the passenger's remaining flight coupons to the next stopover, subject to a maximum amount of $200. The CTA directed British Airways to show cause as to why the CTA should not require British Airways to apply the denied compensation regime provided for (1) under the regulations of the United States, (2) under one of the regimes proposed in complaints filed against Air Canada41 or (3) under any other reasonable regime.

The CTA also stated that the principles of the Montreal Convention should be applied to international air carriage that is not governed by the Montreal Convention and the related tariff must take that into consideration.

IX OUTLOOK

The CTA has introduced new baggage rules for international interline carriage to and from Canada. The new rules apply to itineraries involving carriage by multiple carriers purchased on a single ticket, and provide that (1) a single set of baggage rules must apply to the entire itinerary, and (2) the applicable rules must be disclosed to the passengers on the itinerary receipt or the electronic ticket. The CTA also now requires carriers participating in interline traffic to and from Canada to file interline baggage rules with the CTA and clearly state in their tariffs their respective policies concerning interline baggage. The CTA has also issued a 'Reservation' against IATA's Resolution 302, modifying its application to travel to and from Canada. The new baggage rules were introduced after extensive public and industry consultation, and are applicable to tickets issued on or after 1 October 2014.

This article was first published in The Aviation Law Review - Edition 2 by Law Business Research Ltd.

Footnotes

1. Laura M Safran, QC is a senior partner and Prasad Taksal is an associate at Davis LLP.

2. 30 & 31 Victoria, c. 3 (UK).

3. R.S.C. 1985, c. A-2.

4. SOR/96-433.

5. R.S.C. 1985, c. C-26.

6. S.C. 2002, c. 9, s. 2.

7. S.C. 2005, c. 3.

8. S.C. 1996, c. 10.

9. SOR/88-58.

10. See www.iata.org for details.

11. S.C. 1996, c. 20.

12. S.C. 1989, c. 3.

13. See footnote 5, supra.

14. R.S.C. 1985, c. C-46.

15. See footnote 3, supra.

16. See footnote 8, supra.

17. Ibid.

18. See footnote 3, supra.

19. SOR/92-446.

20. S.C. 1992, c. 34.

21. See footnote 9, supra.

22. R.S.C. 1985, c. C-34.

23. SOR/2000-324.

24. See footnote 8, supra.

25. Ibid.

26. See footnote 22, supra.

27. C.R.C., c. 886.

28. R.S.C. 1985, c. G-6.

29. See footnote 12, supra.

30. Decision No. 390-A-2013.

31. Section 55(1) of the Canada Transportation Act.

32. Decision No. 239-C-A-2013.

33. Decision No. 248-C-A-2013.

34. Decision No. 148-C-A-2014 and Decision No. 191-C-A-2014.

35. Decision No. 177-C-A-2014.

36. Decision No. 202-C-A-2014.

37. See footnote 36, supra.

38. Azar v. Air Canada, Decision No. 264-C-A-2013.

39. See footnote 41, infra.

40. Lukacs v. British Airways plc, Decision No. 10-C-A-2014.

41. Lukacs v. Air Canada, Decision No. 204-C-A-2013.

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Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions