Prior to the COVID-19 pandemic, over 162 million passengers traveled through Canadian airports on an annual basis[1]. Many of us are now taking advantage of lost time and dusting off our passports, ready to board again. And while aviation remains one of the safest modes of transportation, Canadians should still be aware of their legal rights if they or a loved one are injured or killed on an international flight.
The Montreal Convention
Your legal rights as an airline passenger begin with what is known as the Montreal Convention. The Montreal Convention is an international treaty that covers nearly all developed nations, including Canada. It creates strict rules for how airlines handle claims for damage compensation (and lost luggage…but I will save that topic for another day). The Montreal Convention is designed to be a single, universal treaty to govern airline liability around the world[2]. Its predecessor, the Warsaw Convention, is also still applicable in certain instances.
In Canada, both conventions have been enacted into law under the federal Carriage by Air Act.
Although great strides have been made, only 137 of the 191 eligible States have ratified the Montreal Convention, leaving passengers to navigate a patchwork of complex liability regimes, leading to unfairness, confusion, and at times, limiting their access to justice.
While the application of the conventions and the body of law is complex, there are a number of basic concepts that all passengers should know in the unlikely event that an accident happens.
If the accident happened outside of Canada, can I sue for damages in Canada?
The short answer is “yes”. The lawyer answer is (as always), “it depends”.
The Montreal Convention only covers “international carriage” which generally means any flight between two signatory countries (whether or not the flight includes layovers). It does also apply to domestic flights within a signatory country that include a stopover in another country (regardless of whether that foreign country is a signatory to the Convention)[3].
Take for example the tragic downing of Ukraine Airlines Flight PS752. A number of Canadians were travelling on round trip tickets from Toronto to Kiev to Tehran, and back to Canada through Kiev. Although Iran, where the accident took place, is not a signatory to the Montreal Convention, Canada still has jurisdiction over the claims because Canada is considered the country of “destination” for those passengers travelling on round trip tickets under the Montreal Convention.
It is important to note that the Convention does not apply to travel that is only within Canada. While a passenger can still sue for damages for accidents that occur on purely domestic flights, it simply means that the laws of the province where the accident occurred would likely govern.
How does compensation work?
Under the terms of the Montreal Convention, compensation is measured in Special Drawing Rights (SDRs), a standardized financial unit that is calculated by the International Monetary Fund using a weighted average of various currencies[4]. Under the Montreal Convention, the carrier is strictly liable to pay compensation to a passenger or their family in the event of an accident for provable damages up to an initial threshold of 128,821 SDR (or approximately $232,000 CAD).
This does not mean that anytime a passenger is involved in an accident, they are automatically entitled to the full SDR limits. The Montreal Convention requires passengers to prove their damages in order to be entitled to compensation. Although the Convention is an international treaty, typically, the law of the province where the claim is commenced governs the damages claimed. Generally speaking, every Canadian province provides for damages for loss of income, loss of valuable services, pain and suffering and, in the case of a death, funeral expenses and compensation for loss of care, guidance and companionship.
What if my damages exceed the SDR limits?
This question is at the crux of almost all international aviation airline cases. Article 21 of the Montreal Convention states that:
The carrier shall not be liable for damages […] if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
Therefore, in order for a passenger or family to be entitled to compensation higher than the SDR limits, the carrier must prove that the accident was not caused by its negligence. This is what is known as a “reverse onus” and is definitely an advantage to passengers pursuing claims over the SDR limits.
Did you know you may be entitled to an advance payment?
Most travelers also do not know that under Article 28 of the Montreal Convention, in the case of death or injury to a passenger, the carrier is often required by law to provide advance payments to the injured passenger or their family in order to meet the immediate economic needs caused by the death or injury. While obviously these payments do not constitute a recognition of liability, they are often a welcome relief to passengers and their families who are dealing with the immediate aftermath of a traumatic injury or death.
But be careful!
Before accepting any financial compensation from an airline in the immediate aftermath of an accident, passengers should consult with an experienced aviation accidents lawyer to make sure that the compensation is not being offered in exchange for a release that could prevent them from pursuing a future lawsuit. Advance payments are not meant to be exchanged for a full and final release of all claims, and are distinct from early resolution offers that airlines may make.
Only certain injuries may be eligible for compensation
Article 17 of the Convention states that “The carrier is liable for damage sustained in case of death or bodily injury of a passenger […]”
While injuries such as broken bones or a death will clearly meet the definition of “bodily injury”, the case law with respect to whether psychological injuries are considered “bodily” injuries has been and continues to be up for debate.
In the 2013 decision O’Mara v. Air Canada[5], Justice Perrell of the Ontario Superior Court of Justice made the following comments in the context of a class action brought by passengers of an Air Canada flight who claimed to have experienced physical and psychological injuries due to their aircraft suddenly and violently taking a steep dive midflight. In assessing whether the passengers could pursue claims for purely psychological injuries stemming from the incident, he remarked that:
“The term “bodily injury” as used in the Montreal Convention is intended to have the same meaning as in the Warsaw Convention, and the case law from around the world[6] about the Warsaw Convention and about the Montreal Convention holds that compensation for purely psychological injuries that do not manifest physical injury or an injury to the body are not recoverable under the Conventions” [emphasis added] (para 42).
In other cases around the world[7], some claims for psychological injuries have been allowed and others have not. The exercise is highly dependent on the facts of the case and on the nature of the medical evidence a passenger can produce to convince the court that their claim is not “purely” psychological.
Know your rights when traveling
Ultimately, the Montreal Convention was implemented with the intent to provide passengers with “fairer compensation and greater protection” — to be a “universal treaty to govern airline liability around the world”[8]. That being said, the pathways to seek justice for an aviation claim (whether through the Montreal Convention or another regulatory stream) can be complex. Questions such as whether a flight is covered under the Convention, what is the applicable jurisdiction, what injuries and damages can be claimed and by who, can all be overwhelming, particularly in the case of a traumatic incident or death.
When in doubt, an experienced aviation lawyer can help determine if a passenger is eligible to make a claim, and advise on the most effective pathway to obtaining compensation.
Trusting that this article helps all Canadian airline passengers feel more informed and confident – happy traveling!
[1] https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=2310025301
[2] https://www.iata.org/en/policy/smarter-regulation/mc99/
[3] Montreal Convention Article 1.2
[4] https://rppa-appr.ca/eng/notice/effective-december-28th-2019-notification-air-carriers-upward-revision-limits-liability-
[5] O’Mara v. Air Canada, 2013 ONSC 2931 (CanLII), <https://canlii.ca/t/fxkf9>,
[6] For example in In Morris v. KLM Royal Dutch Airlines Ltd.[6], Lord Hobhouse stated that bodily injury means:
“a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset such as fear, distress, grief or mental anguish… A psychiatric illness may often be evidence of a bodily injury or the description of a condition which includes bodily injury. But the passenger must be prepared to prove this, not just prove a psychiatric illness without evidence of its significance for the existence of a bodily injury.”
[7] See for example King .v. Bristow Helicopters, Weaver v Delta Airlines Inc, re Crash at Little Rock, Arkansas
