The United Airlines Debacle In The Context Of Canadian Tort Law

Airlines have faced increased legal, public relations andoperational challenges ever since Dr. David Dao's forcible removal from hisUnited Airlines flight on April 9, 2017. These challenges can lead to a perfectstorm in which airlines may find themselves exposed to significant claims fordamages. In Canada, personal injury liability aboard an aircraft is governed bymultilateral treaty if the flight is international, and by common lawprinciples in tort and contract if the flight is domestic. This paper willbriefly discuss the extent to which airlines may be exposed to liability fordomestic and international travel.

International Travel

International flights are governed exclusively by the Montreal Convention (the "Convention") — a multilateral treaty adopted by various member states, including Canada. The Convention was ratified by Canada in 2002 and is incorporated into federal law by virtue of section 2 of the Carriage by Air Act.1

A flight is "international" if a passenger departs from and arrives in two different member states, or if the passenger's flight within a member state has a stopover outside of that state. International carriers are liable for damage sustained due to bodily injury if the accident happened on the aircraft or in the course of embarking or disembarking.2 The Convention contains important conditions and limits of liability, some of which are discussed below.

Conditions

The damage sustained by a passenger must qualify as "bodily injury" to trigger liability under the Convention. In general, courts have interpreted "bodily injury" to refer to physical injuries, or to psychological injuries that manifest a clear physical injury.3 Pure psychological injuries such as stress or inconvenience appear to be precluded.4

In Gontcharov v. Canjet, flight attendants denied the plaintiff's request for a blanket after his complaint about being cold.5 He was also informed that he was being considered as a "high maintenance" passenger. When the aircraft landed,he was escorted off the aircraft by police and held for four hours. The plaintiff claimed for damages due to severe bronchitis, and for damages for pain, suffering, and mental distress. The motion judge allowed the claim for severe bronchitis to proceed because it fell within the scope of the Convention but struck the plaintiff's claim for psychological damages pursuant to existing case law.

Furthermore, the Convention requires the bodily injury to be caused by an "accident"...