Transportation Notes: Should Expert Reports On The Interpretation Of The Montreal Convention Be Allowed In Challenge To Canadian Air Passenger Protection Regulations?

• Published date: 20 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Aviation, Trials & Appeals & Compensation
• Law Firm: WeirFoulds LLP
• Author: Mr Carlos Martins and Andrew MacDonald

Canada's Air Passenger Protection Regulations (the "APPRs") came into effect in two stages in July and December 2019. Even before the first tranche of provisions came into effect, the International Air Transport Association, Airlines for America and numerous Canadian and foreign air carriers commenced a challenge to the legality of several provisions of the APPRs in the Canadian Federal Court of Appeal (the "FCA"), including on the basis that they violate the Montreal Convention.

As with just about everything else, the litigation has been delayed by COVID-19. However, in October 2020, the FCA issued a decision in a motion brought by the Canadian government to strike portions of two expert reports filed by the airlines in support of their position that provisions of the APPRs are contrary to international law.

By way of brief background, the APPRs impose requirements on air carriers relating to flights to, from and within Canada, including connecting flights. These include provisions relating to information obligations, alternate travel obligations, care and accommodation obligations, and compensation for inconvenience obligations in cases of tarmac delays, denied boarding, and delayed and cancelled flights, as well as obligations relating to baggage, which include compensation rules.

An obvious source of inspiration for the Canadian Transportation Agency - which drafted and is responsible for the enforcement of the APPRs - was the European Union's Regulation (EC) No. 261/2004 ("EU261"). EU261 has generated a veritable (and extremely long-lasting) volcanic eruption of legal controversy and litigation since coming into effect 15 years ago. In part, EU261 provides that passengers must be paid specified minimum levels of monetary compensation by carriers in cases of flight disruption, dependent on the duration of the delay and the distance that was to be travelled.

In the opinion of many (if not most) practitioners and scholars with expertise in international aviation law, certain key provisions of EU261 are contrary to international law and, in particular, the exclusive rules governing the liability of air carriers under the Montreal Convention (and its predecessor the Warsaw Convention). The Convention expressly excludes carriers from liability for "non-compensatory damages" and imposes liability in cases of delay only where it is proved that the damage was "occasioned by delay" and the carrier is unable to show that it took "all measures that could...