The Montreal Convention is a treaty that was adopted in 1999 by the International Air Transport Association (IATA) and governs the liability of airlines for international carriage by air. It applies to all flights that either originate or terminate in a country that has ratified the convention, which includes Canada.
One of the main provisions of the Montreal Convention is that airlines are strictly liable for damage caused by the death or injury of passengers, up to a certain limit (currently around $170,000 Canadian dollars). In addition, airlines are also liable for damage to baggage and cargo, but the limit of liability for these types of claims is lower.
How are you compensated under the Montreal Convention?
Under the Montreal Convention parties are awarded Special Drawing Rights (SDR) rather than a particular currency as compensation. The SDR is an international reserve asset created by the IMF to supplement the official reserves of its member countries.
The SDR is not a currency. It is a potential claim on the freely usable currencies of IMF members. As such, SDRs can provide a country with liquidity.
1 SDR roughly converts $1.80.
Cancelled Flights
Cancelled flights, particularly during the winter holidays, can be a source of frustration for many travellers. In Canada, airlines are required to follow the Canadian Transportation Agency's (CTA) guidelines for compensation and assistance for passengers affected by flight disruptions. This includes providing refunds or alternative travel arrangements, as well as meals, accommodation, and transportation if a flight is cancelled.
However, if a flight is cancelled due to reasons beyond the airline's control, such as bad weather or air traffic control strikes, the airline may not be liable for any additional compensation beyond the reimbursement of the ticket price. This can be a source of disappointment for passengers, particularly if they have made non-refundable travel arrangements.
Article 19 of the Montreal Convention states:
Article 19 — Delay the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
Injured while travelling?
In addition to potentially applying to passengers who experience delayed flights, the Montreal Convention also applies to parties who are injured or killed while travelling.
In O'Mara v Air Canada 2013 ONSC 1931 the Court wrote:
Under Article 21 of the Montreal Convention, there is now a two-tier scheme, based on the International Monetary Fund's Special Drawing Right ("SDR"). The first tier is strict liability, a no-fault tier for damages not exceeding 100,000 SDRs. The second tier is without monetary limit, but the carrier is permitted to defend itself for claims about the first tier. Article 21(2) provides that the carrier shall not be liable if it proves either that the damage was not due to the negligence or other wrongful act or omission of the carrier, or that the damage was solely due to the negligence or wrongful act of a third party.
Strict liability applies to damages claimed up to 100,000 SDRs. After that, there is no "cap" on damages but damages in excess of 100,000 SDRs will not be awarded on a strict liability basis.
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.
Wettlaufer v. Air Transat A.T. Inc ("Transat") provides some guidance on this question.
Wettlaufer v. Air Transat A.T. Inc, 2013 BCSC 1245
In Transat, the incident at issue took place in April 2009. The plaintiff was seated in the back row of an aircraft operated by the defendant on a flight from Vancouver to Cancun. As the aircraft landed and then braked, an unsecured food cart struck the back of the plaintiff's seat with force.
The plaintiff claimed she suffered numbness and tingling in her left shoulder, arm, wrist, hand and fingers. She also suffered from an acute impingement of her rotator cuff, neck pain, thoracic outlet syndrome, upper and mid-back pain, post-traumatic stress disorder, and headaches, dizziness, nausea and sleep disturbances. The plaintiff returned to work on a graduated basis. First part-time in August 2009, and then full-time in October 2009.
In May 2012, the plaintiff went on disability for the reason of pain and discomfort. The plaintiff commenced an action for damages. The action was allowed. The plaintiff was awarded the following damages:
- Non-pecuniary damages of $60,000. In describing this award, the Court wrote:
As described above, the plaintiff suffered whiplash-type injuries and emotional distress. As described by the defendant's counsel, the plaintiff's injuries "cause her some discomfort and pain in her everyday life". As of October 18, 2009, she could work full-time and she continued to work full-time for another two years. The defendant suggested that the non-pecuniary damages award should not exceed $60,000 and recommended an award in the range of $40,000 to $60,000.
After reviewing the defendant's and plaintiff's cases and positions on quantum, I find that $60,000 would be an appropriate award. I have included in the $60,000 award damages for emotional distress caused by the bodily injuries and her fear of being bumped again, whether on a plane or not. If I were to separate the award for emotional distress, it would be relatively small (less than $2,000) because the plaintiff has not proven on a balance of probabilities that the distress existed as of the date of trial. I have not compensated the plaintiff for a fear of flying because there is not a sufficient causal link between such fear and the whiplash-type injury.
The other damages the plaintiff received were:
- Damages for past wage loss from the date of the accident to October 2009, when she returned to work full-time;
- Damages of $20,000 for the cost of future care, and;
- Special damages of $11,355.
However, the Court held that the plaintiff's testimony was unreliable in connection with her alleged continuing injuries. As a result of the accident, the plaintiff suffered whiplash-type injuries and emotional distress. The plaintiff claimed that the injuries caused her some discomfort and pain in everyday life. However, the plaintiff had not established that injuries caused by the accident prevented her from continuing to work full-time after October 2009.
Notably, there is a 2 year limitation period set out in the Montreal Convention. It states:
Article 35 — Limitation of Actions
- The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped
The Montreal Convention was implemented with the intent to provide passengers with fairer compensation and greater protection. While the Montreal Convention ideally served to simplify the process of dealing with injuries or other issues when travelling, navigating the complexities of the Montreal Convention and whether a claim may apply can still prove to be challenging.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.