The top court’s evidentiary ruling was part of its high profile 9-0 ruling Oct. 4, 2024 affirming that federal regulations in force since 2019--that require airlines to provide standardized amounts of compensation to passengers on international flights for non-safety-related flight delays, cancellations and denial of boarding that are with the airline’s control, as well as baggage fee refunds for lost or damaged baggage—are within the Canadian Transportation Agency’s jurisdiction under s.86.11 of Canada Transportation Act and do not conflict with the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention): International Air Transport Association v. Canada (Transportation Agency) 2024 SCC 30.
Justice Malcolm Rowe
The airline industry urged that the impugned provisions were ultra vires the agency’s jurisdiction due to their inconsistency with the Montreal Convention, which Canada signed in 2001, and which was implemented into Canadian law by amendments to the Carriage by Air Act. The appellants’ argument hinged on art. 29 of the Montreal Convention which codifies its exclusivity for what airlines can be required to pay passengers for international flight disruptions in “any action for damages.”
However, the Supreme Court of Canada held that the compensation provided for under the regulations is not an “action for damages” and that the regulations are compatible with the Montreal Convention.
The Montreal Convention is exclusive within the scope of the matters it addresses, but it does not deal comprehensively with all aspects of international carriage by air, Justice Rowe explained.
“The exclusivity principle in art. 29 of the Montreal Convention applies to any ‘action for damages’,” he reasoned. “However, the Regulations do not provide for an ‘action for damages’ because they do not provide for individualized compensation.”
Justice Rowe said the entitlements provided for are not tied to harm suffered by the claimant as a result of injury caused by another. Rather, the regulations create statutory entitlements as part of a consumer protection scheme that operates irrespective of the harm (if any) suffered by the claimant.“Thus, the Regulations do not give rise to liability that is pre-empted by art. 29and so do not conflict with the Montreal Convention as implemented by the Carriage by Air Act,” he concluded.
Turning to a less prominent, but consequential, debate in the Canadian lower courts, given the growing importance of international law in civil and administrative law litigation, Justice Rowe ruled that judges have the discretion to admit expert evidence on international law so long as the threshold admissibility criteria in Mohan are met. He went on to briefly set out a basic framework for courts to decide when to admit such evidence.
Justice Rowe said the familiar and long-established Mohan test “should be applied in the context of international law as it is in other circumstances where expert evidence is sought to be admitted.”
“Given the variety of contexts in which expert evidence is sought to be adduced on questions of international law, the admissibility of such evidence is best left as a matter of judicial discretion rather than being subject to a fixed and invariable rule,” he wrote.
Mohan’s “basic structure for the law relating to the admissibility of expert opinion evidence” is applicable in a wide range of contexts outside the experience of judges,”Justice Rowe noted.
He held that international law expert evidence “may be considered” by the judge so long as it satisfies Mohan’s four threshold requirements for admissibility--relevance; necessity in assisting the trier of fact; absence of an exclusionary rule; and a properly qualified expert. At the second stage of the Mohan test — the discretionary “gatekeeping” stage — judges must balance the potential risks and benefits of admitting the evidence and determine whether the benefits outweigh the risks.
“Otherwise, judges should proceed as they would for any other question of law — that is, on the basis of the submissions of the parties before the court and authorities on which they rely,” he said.
He noted Mohan’s teaching that if “on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.”
Bruno Gélinas-Faucher, University of New Brunswick
“The court acknowledged, just like the Federal Court of Appeal, that this was a contentious issue. The law was really unclear on that front and so the Supreme Court took the step to clarify the matter,” he said. However, the brevity of the courts’ reasoning is somewhat unsatisfying, he told Law360 Canada. “I think we'll see more litigation on that front, because even the Federal Court of Appeal said, . . .’It's unclear how Mohan would apply to questions of international law, and the Supreme Court doesn't tell us much in the way of specific indications, apart from confirming that Mohan does apply.. . . and so courts will be left to determine, ‘Well, is it necessary for me to receive expert evidence on questions of international law, or am I versed enough in those issues of international law that I should decline to receive that evidence on . . .legal questions at the heart of what I'm, as a decision-maker, trying to decide?’”
Moreover, the court confirmed the application of Mohan, but “it did not bother applying the test to the evidence at hand,” he added. “We would usually expect the court to provide guidance by applying a new test or criteria to the facts at hand, which it apparently declined to do in this case. Despite the appellants requesting the court to overturn the striking of their affidavits, it appears that the court dodged the issue by taking the appellants’ argument at its highest – meaning implicitly that it accepted the content of the contentious expert affidavits.”
(The issue arose because expert affidavits on international law with respect to state practice were put forward in the proceedings below.)
Pierre Bienvenu, IMK Advocates LLP
“Canadian courts were divided on this question, and the court has provided helpful guidance to Canadian courts and litigants on that question,” Bienvenu told Law360 Canada. “It’s brief guidance, but essentially, what the court has done is reject the very firm and absolute rule that the Federal Court of Appeal had endorsed, which consists in saying that public international law is part of Canadian law, Canadian judges are presumed to know Canadian law, and therefore, in no circumstances can expert evidence be used to prove public international law.”
He added, “there may be a caveat to that, which is when one was dealing with emerging norms of public international law. But apart from that exception, it was a very strict and absolute rule that the Federal Court of Appeal and other Canadian courts had favored.”
Bienvenu said the appellants are disappointed by the appeal’s outcome on the compensation issue, but the clarity provided by the judgment is welcome.
John Lawford, Public Interest Advocacy Centre
In a press release, the intervener coalition of the Council of Canadians with Disabilities, the National Pensioners Federation, and the Public Interest Advocacy Centre, represented by Katrine Dilay and Chris Klassen of the centre and Marina Pavlovic, called the decision “a major victory for Canadian consumers.”
“The Canadian regulations offer set compensation amounts which can be accessed through filing a simple claim with the airline,” the coalition said. “This set of regulations provides standardized and timely compensation for the immediate, serious and stressful impact of flight disruptions on all consumers.”
However, in maintaining consumers’ right to seek standardized compensation under the federal regulations, the ruling does not take away the ability of consumers to seek individualized remedies under the Montreal Convention, such as to cover expenses when specialized equipment is lost or damaged.
The coalition said more work needs to be done to improve transparency in the decision-making process at the Canadian Transportation Agency, to address backlogs in accessing compensation under the regulations, and to review the levels of compensation available to consumers.
The agency itself declined an interview, but said the ruling means “there are no changes to the rights of air passengers or the responsibilities of airlines as a result of this decision.”
“The Supreme Court of Canada's decision brings certainty to Canada's passenger protection regime and confirms air carriers' minimum obligations to pay compensation for flight disruptions and lost and damaged baggage,” the agency said in a statement.
Photo of Justice Malcolm Rowe: SCC Collection
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