On April 27, 2020, the Quebec Superior Court rendered its decision on the authorization application brought by Mr. Calciu in respect of a proposed class action against the leisure airline Air Transat AT Inc. (Transat). The claim’s genesis was a nineteen-hour delay to flight TS 803 returning to Montreal from Cuba on August 16, 2019.
Mr. Calciu sought authorization to bring the class action on behalf of all passengers aboard the flight for compensation for their damages incurred and arising from the delay, the whole pursuant to Article 19 of the Montreal Convention 1999 (MC99), which is incorporated into Canadian federal law pursuant to the Carriage by Air Act. MC99 is the successor instrument of the Warsaw Convention 1929. The Convention purports to unify the legal liability regimes of airlines for international carriage in Contracting States, dissuading forum shopping in search of alternative and more favourable remedies.
Authorization to bring a class action in Quebec is governed by Article 575 of the new Code of Civil Procedure. The four cumulative conditions to be satisfied by a plaintiff in order for a proposed class action to be authorized are: (i) that the claims of the class members raise identical, similar or related issues of law or fact; (ii) that the facts alleged appear to justify the conclusions sought; (iii) that the composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings; and (iv) that the class member appointed as representative plaintiff is in a position to properly represent the class members.
Transat argued that neither requirement (ii) nor (iv) were met in the application. Transat also unsuccessfully sought to narrow the scope of the action to Quebec residents. As a preliminary matter, Tremblay J.C.S. denied this relief to the airline given the lack of evidence of the difficulties alleged by Transat to arise from the claim not being geographically limited by the residence of class members.
In respect of requirement (ii), the cornerstone of Transat’s argument was that the damages claimed by the plaintiff were chiefly non-pecuniary in nature, intended to compensate trouble and inconvenience suffered by reason of the delay. Transat argued that this fell afoul of MC99, as interpreted by the Supreme Courts of Canada and the U.K. in recent years in decisions denying claims for indemnity for non-pecuniary losses.
In 2014, the Supreme Court of Canada denied a claim for damages to the plaintiff in Thibodeau v. Air Canada (2014 SCC 67) where the defendant airline had failed to abide by the requirements of the Official Languages Act. The Court held that, in light of the principle of exclusivity of recourse set out by section 29 of the Convention which prohibits claims being founded in domestic laws, the plaintiff’s claim for non-pecuniary damages premised in the Official Languages Act and arising from hurt feelings relating to the denial of his language rights must be dismissed.
The Supreme Court of Canada relied in reaching that conclusion on a 2014 decision of the U.K. Supreme Court in Stott v. Thomas Cook Tour Operators ( UKSC 15), in which the plaintiff had brought a claim against the airline based on the breach of rights guaranteed to him as a disabled person under the EU Disability Regulation as implemented into U.K. domestic legislation. Despite expressing its discomfort with the outcome, the U.K. Supreme Court concluded that it was bound to deny relief to the plaintiff for his non-pecuniary claim on account of the exclusivity principle espoused in Article 29 of MC99.
Tremblay J.C.S. distinguished Calciu’s claim from this line of cases on the basis that the claims in Thibodeau and Stott had no basis in MC99. Air carrier liability is governed by Articles 17-19 of MC99 and the claims of Thibodeau and Stott were inadmissible on account of the fact that they had no basis in these provisions. To the contrary, Mr. Calciu’s claim on behalf of the putative class, did find a prima facie basis in Article 19 of MC99 which concerns air carrier liability for delay. Accordingly, the availability of non-pecuniary damages in a delay claim was not settled by the conclusions of the respective highest chambers in Thibodeau and Stott.
The court refused to rule on the merits of the claim for non-pecuniary damages at the authorization hearing, refuting Transat’s claim that this was a pure question of law and rather highlighting that there may need to be evidence of the nexus between the delay and the alleged damages. Accordingly, it sufficed to note that the allegations advanced sufficed to support the conclusions sought for the purposes of authorization.
In relation to the contested factor (iv), the court confirmed that Mr. Calciu was an appropriate representative for the class members. The Court underlined that this factor is to be interpreted liberally. The airline’s argument on this point was focused on the absence of personal claim of Mr. Calciu which was intrinsically related to Transat’s argumentation in connection with (ii); and which had already been held to be fallacious by the court.
Independent from the lack of contestation by Transat on the balance of the criteria of Article 575, the Court did also independently satisfy itself that there were common issues relating to class members, reformulating in part the questions to be addressed by the court at trial, and also that there was no other appropriate procedural vehicle to bring the claims. On this latter point, Tremblay J.C.S. noted that Mr. Calciu did not know the identity of all class members and, given their geographic dispersion, it would not be practical for the claims to be brought on a consolidated basis in an ordinary proceeding.