nan Editor’s Note: Corrigendum released July 20, 2006. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 231 Date: 2006 05 16 Docket: Q.B.G. No. 1055/2004 Judicial Centre: Saskatoon BETWEEN: THOMAS WALTON, DR. VANCE CHOW and MEGAN ENGEDAHL, suing by her litigation guardian, WENDY ENGEDAHL, and MYTRAVEL CANADA HOLDINGS INC., SKYSERVICE AIRLINES INC., SIGNATURE VACATIONS LTD., IAN RAMPERSAUD and MARIA SOUSA, Counsel: Ronald P. Piché for the plaintiffs Bruce W. Wirth for the defendants JUDGMENT DOVELL J. May 16, 2006 [1] The plaintiff, Thomas Walton, the representative plaintiff, applies for certification of this action pursuant to The Class Actions Act, S.S. 2001, c. C‑12.01, on behalf of himself and the other passengers of an international flight being Flight 361 from Punta Cana, Dominican Republic, to Regina and Saskatoon, Saskatchewan, Canada, on January 21, 2004. The flight was delayed for about an hour and half at the Punta Cana airport as result of several evolving mechanical difficulties referred to by the pilot as “creeping delay” resulting in uncomfortable conditions on the airplane for the passengers. [2] On June 21, 2004, statement of claim was issued with regard to this case and on October 20, 2004, an amended statement of claim brought under The Class Actions Act. In response, on November 29, 2004, statement of defence was entered on behalf of all of the defendants. Subsequently there has been with the consent of counsel for the plaintiff an amended statement of defence made on February 3, 2005, and an amended amended statement of defence made on February 24, 2006. [3] On February 21, 2005, an order was made pursuant to s. 4(2)(a) of The Class Actions Act appointing myself as Justice of this Court to hear the certification application pursuant to s. 4(2)(b) of the Act. [4] Prior to the actual certification hearing counsel for the defendants objected to the form of the notice of motion in that it was not in strict compliance with Form 5D which resulted in the plaintiff redrafting the notice of motion for certification brought under The Class Actions Act. [5] Argument of the certification application was actually made on February 24, 2006; however, counsel for the plaintiff was given until March 3, 2006, to file case law with regard to the narrow issue of the meaning of “bodily injury” within Article 17 of the Montreal Convention of 1999 and counsel for the defendants was given until March 10, 2006, to file any material in reply. Three cases were provided to the Court by plaintiff’s counsel who requested the opportunity of presenting further oral argument to the Court which the Court heard on April 28, 2006. [6] In support of the certification application the applicant filed two affidavits of the proposed representative plaintiff, Thomas Walton, and an affidavit of Randy Slusar, the son‑in‑law of Thomas Walton, who both were passengers on Flight 361. [7] The defendants filed five affidavits of flight attendants, including those of Brenda Martin, Louanne Mountain, Sheila Johnstone, Nancy McEwen and Alejandra Rosenberg; the affidavit of Maria Xavier (Sousa), the customer service manager of Flight 361; the affidavit of the pilot of Flight 361, Ian Rampersaud; the affidavit of Joel Birnbaum, the director of claims and facilities of MyTravel Canada Holdings Inc.; the affidavit of Marylou Lavalle, supervisor with customer relations at Skyservice Airlines Inc.; and the affidavit of Christina Groth, vice president of aviation and operations of Signature Vacations. B. Nature of The Claim [8] The statement of claim seeks to bring the action on behalf of 215 passengers who boarded Skyservice Boeing 757 200 aircraft, Flight 361, at approximately 4:10 p.m. on January 21, 2004, in Punta Cana with destination to Regina and Saskatoon. The plaintiff claims damages on his behalf and on behalf of all members of the class of plaintiffs which he seeks to represent in this class action for negligence for which he alleged all of the defendants are liable; unlawful confinement on the part of the defendant, Rampersaud and breach of contract with regard to the defendants, MyTravel and Signature. [9] Specifically, the following pleadings are contained in the amended statement of claim: 15. This action is brought on behalf of the Plaintiffs in their own right and ... as representatives of all passengers of the aforementioned Flight 361 and all passengers who have suffered personal injury, economic loss or damage as result of the events described in Paragraph 10 herein. 17. The Plaintiffs state that each Defendant was negligent in its dealing with the Plaintiffs and each Defendant owed duty of care to them. The Plaintiffs state that each defendant, inter alia: (a) Owed each Plaintiff duty of care to ensure that their health and well‑being were maintained during the flight; (b) Knew that breach of its duty would cause serious and severe damages to the Plaintiffs; (c) Knew or ought to have known of the potential for extreme heat in Puna [sic] Cana and should have taken all reasonable precautions to ensure that there were no excessive delays after the Plaintiffs boarded the aircraft. The Plaintiffs state that the Defendants were negligent in not taking such precautions; (d) Knew or ought to have known of mechanical difficulties which could arise with the operation of the aircraft and failed to properly maintain and repair it. The Plaintiffs state that the defendants were negligent in not properly maintaining and repairing the aircraft; (e) Knew or ought to have known that the Puna [sic] Cana airport did not have properly functioning air conditioning cart and should have made alternate arrangements as result or, alternatively, taken additional precautions to ensure that there were not excessive delays after the Plaintiffs boarded the aircraft. The Plaintiffs state that the Defendants were negligent in not making proper arrangements or taking such precautions; (f) Knew or ought to have known that Puna [sic] Cana airport would require satisfactory advance payment for the use of the air conditioning cart or alternatively, would require approved credit for use [of] the air conditioning cart. The Plaintiffs state that the Defendants were negligent in not having available funds to utilize the cart or for failing to have proper financing in place; (g) Knew or ought to have known that proper financing for the use of the Puna [sic] Cana airport, its equipments, and facilities was required in order to utilize its airport services. The Plaintiffs state that the Defendants were negligent in not having financing in place at Puna [sic] Cana; (h) Such further and other acts not now known to the Plaintiffs. 18. The Plaintiffs state that the Defendants SkyService, Rampersaud, and Sousa were also negligent in that they, inter alia: (a) Failed to provide water and other necessaries in order to sustain and/or comfort the Plaintiffs during their ordeal; (b) Failed to properly stock the aircraft with water and other necessaries in order to sustain and/or comfort the Plaintiffs during their ordeal; (c) Failed generally to attend to the needs of the Plaintiffs during their ordeal; (d) Such further and other acts not now known to the Plaintiffs. 19. The Plaintiffs state that the Defendant, Rampersaud, is liable for the tort of unlawful confinement by refusing to permit the passengers to disembark from the aircraft during the period in question after several passengers had requested that they be allowed to leave. The Plaintiffs further plead and rely upon the Airline Pilots Association Code of Ethics in support of their claim. 20. The Plaintiffs state that the defendant, SkyService, is vicariously liable for the acts of the Defendants Rampersaud and Sousa, as Rampersaud and Sousa were acting throughout in their capacity as employees of SkyService and/or as agents and or designates of SkyService. 21. The Plaintiffs state that the Defendants My Travel and Signature have breached their contract with them, term of which either expressly or impliedly was, inter alia, that: (a) The air transportation‑certified carrier hired would provide safe, comfortable, trouble‑free and secure air travel; (b) The air transportation‑certified carrier hired would be properly financed and/or have proper line of credit in order to utilize the equipment and facilities at the airports frequented by the air transportation‑certified carrier; (c) The reasonable efforts had been made in selecting the air transportation‑certified carrier utilized; (d) such further and other breached not now ascertained by the Plaintiffs. 22. The Plaintiffs hereby plead the provisions of the Warsaw Convention as they may apply to this action and in particular rely on Articles 1, 19 and 20. 23. The Plaintiffs state that purported disclaimer regarding liability as result of the actions or inactions of the air transportation‑carrier is of no force and effect as it was not part of the terms of the contract and was communicated after consideration had been paid to the Defendants. 24. The Plaintiffs state that the conduct and actions of the Defendants, SkyService, MyTravel, Signature, Ian Rampersaud and Maria Sousa, were high‑handed, callous and arrogant, warranting exemplary and/or punitive damages. The Plaintiffs state the utter disregard shown for their welfare and the Defendant’s attempts to profiteer from the Plaintiff’s thirst warrant increased damages. [10] The amended amended statement of defence of February 24, 2006, raises numerous defences including the following as plead: 10. In response to the entire Amended Statement of Claim and in response to all of the causes of action alleged against the various defendants, the defendants state that the three named plaintiffs, and all other passengers on Flight 361, were travelling on journey of international carriage by air, departing from Canada and returning to Canada, with an agreed stopping place in Punta Cana of the Dominican Republic. Accordingly, the rights and obligations of the parties are governed exclusively by the Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention, 1999”), which is incorporated into the laws of Canada by the Carriage by Air Act, as amended, R.S.C. 1985, c. C‑26 (hereinafter referred to as the “Convention”). 11. The defendants state that the claims of the named plaintiffs and of any other passengers on Flight 361 are governed by the Convention, which provides the sole cause of action and only remedy for all claims arising in relation to Flight 361, including all claims for damages for bodily injury suffered by passengers. Article 17, paragraph and Article 29 of the Convention read as follows: “17.1 The carrier is liable for damage sustained in case of death or bodily injury of passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. 29. In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable.” 12. The defendants state that the plaintiffs have no cause of action against any of the defendants by reason of the following: (a) none of the plaintiffs suffered bodily injury within the meaning of Article 17, paragraph of the Convention; and (b) if any of the plaintiffs did suffer bodily injury, which is not admitted but denied, the bodily injury was not caused by an accident within the meaning of Article 17, paragraph of the Convention. 13. In the alternative, the defendants deny any negligence, breach of contract or unlawful confinement on their part. The defendants further deny that the doctrine of res ipsa loquitor has any application to the facts of this case. C. The Class Actions Act and The Queen’s Bench Rules [11] The following provisions of the Act have application to the certification application before the Court: Interpretation nan In this Act: ... “class” means two or more persons with common issues respecting cause of action or potential cause of action; ... “common issues” means: (a) common but not necessarily identical issues of fact; or (b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts; ... Class Certification nan The court shall certify an action as class action on an application pursuant to section or if the court is satisfied that: (a) the pleadings disclose cause of action; (b) there is an identifiable class; (c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (d) class action would be the preferable procedure for the resolution of the common issues; and (e) there is person willing to be appointed as representative plaintiff who: (i) would fairly and adequately represent the interests of the class; (ii) has produced plan for the class action that sets out workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. Certification application 7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. (2) An order certifying an action as class action is not determination of the merits of the action. ... Certain materials no bar to certification nan The court shall not refuse to certify an action as class action by reason only of one or more of the following: (a) the relief claimed includes claim for damages that would require individual assessment after determination of the common issues; (b) the relief claimed relates to separate contracts involving different class members; (c) different remedies are sought for different class members; (d) the number of class members or the identity of each class member is not ascertained or may not be ascertainable; (e) the class includes subclass whose members have claims that raise common issues not shared by all the class members. [12] In respect of The Queen’s Bench Rules applicable upon certification application, Rule 82 provides: Application for Certification 82(1) Notice of Motion for Certification pursuant to clause 4(2)(b) or section of the Act shall be in Form 5D. (2) An application for certification order pursuant to section of the Act must be supported by an affidavit of the proposed representative plaintiff: (a) deposing to the proposed representative plaintiff’s willingness to be appointed; (b) setting out the basis of the proposed representative plaintiff’s personal claim, where applicable, and the reason the proposed representative plaintiff believes that common issues exist for the rest of the members of the class; (c) setting out objective criteria for determining membership in the proposed class, and providing the proposed representative plaintiff’s best information on the number of members in the proposed class; (d) setting out sufficient information to establish that the proposed representative plaintiff would fairly and adequately represent the interests of the class and is aware of the responsibilities to be undertaken; (e) exhibiting plan for the class action that sets out workable method of: (i) advancing the action on behalf of the class; and (ii) notifying class members of the action; and (f) setting out sufficient information to establish that the proposed representative plaintiff does not have, on the common issues, an interest that is in conflict with the interests of other class members. [13] Although the applicant argued that if ever there was case that should be certified, this case was it as it involved defined group of passengers in confined space, being an airplane, over small period of time, the defendants opposed the certification application on the basis that none of the five criteria as set out in s. of the Act had been met by the applicant. [14] The Court agrees. Although the Court would have dismissed the certification application on the sole basis of not meeting the criteria as set out in s. 6(a) of the Act, for reasons that will be thoroughly canvassed in this judgment, it would have also dismissed the certification application on the basis of the other criteria as outlined in s. of the Act not being met for reasons which will be briefly outlined in this judgment. (1) Section 6(a) cause of action [15] The amended statement of claim alleges negligence on the part of all of the defendants, unlawful confinement on the part of the pilot, Rampersaud, and breach of contract as against the defendants MyTravel and Signature Vacations. [16] As stated by McLellan, J. in Daniels v. Canada (Attorney General), 2003 SKQB 58 (CanLII), 230 Sask R.120 at paras. [13] Suffice it for me to say that although the onus is on the plaintiffs, on certification application, to satisfy the Court that the pleadings disclose cause of action, it is not very high onus. [14] The test to be applied in certification applications is similar to those used in applications to strike statement of claim as disclosing no cause of action. Firstly, all allegations of fact pleaded are to be accepted as true and secondly, pleadings will only be struck if it is plain and obvious that the plaintiffs cannot succeed. In my view court should be reluctant to deny plaintiff his or her day in court. And at paragraph 18: [18] The generous approach to be adopted on this application is specifically spelled out in s. of the CAA which provides: “7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. “(2) An order certifying an action as class action is not determination of the merits of the action.” [17] Accordingly, this Court in determining this certification application has assumed that all of the specific allegations as contained in the amended statement of claim are true. [18] The question to be determined is whether or not it is plain and obvious that the applicant’s claim does not disclose cause of action. [19] The defendants argue that the statement of claim does not disclose cause of action as against any of the defendants as any potential claim that any of the passengers of Flight 361 might possibly have against any of the defendants is governed solely by the provisions of the Montreal Convention of 1999 and that the requirement of Article 17(1), that namely, bodily injury must be established by the applicant has not been met. The Court agrees. [20] Although the applicant pleaded in his amended statement of claim the provisions of the Warsaw Convention, the applicable convention for consideration of this Court with regard to the passengers aboard Flight 361, being an international flight, is the Montreal Convention of 1999. [21] The Montreal Convention of 1999 is incorporated into the laws of Canada by the Carriage by Air Act, as amended, R.S.C. 1985, c. C‑26, and is set out as Schedule VI of the Act. The Montreal Convention of 1999 modernized the Warsaw Convention and became effective on November 4, 2003. [22] The purpose of the Carriage by Air Act as outlined in the preamble of the Statute is as follows: An Act to give effect to certain conventions for the unification of certain rules relating to international carriage by air. [23] There is no question that Flight 361 from Punta Cana, Dominican Republic to Regina and Saskatoon, Saskatchewan, was an international flight and thus the provisions of the Carriage by Air Act are applicable. [24] Section 2(2.1) of the Carriage by Air Act states: (2.1) Subject to this section, the provisions of the Convention set out in Schedule VI, in so far as they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, have the force of law in Canada in relation to any carriage by air to which the provisions apply, irrespective of the nationality of the aircraft performing that carriage. [25] The general relevant provisions of the Montreal Convention of 1999 as contained in Schedule VI of the Carriage by Air Act to this certification application include the following: Schedule VI Chapter General Provisions Article Scope of Application 1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. 4. This Convention applies also to carriage as set out in Chapter [Carriage By Air Performed by Person Other Than Contracting Carrier], subject to the terms contained therein. [26] The specific governing sections of the Montreal Convention of 1999 with regard to the defendant, Skyservice, being the carrier, are Articles 17(1) and 29. Those provisions read as follows: Chapter III Liability of the Carrier and Extent of Compensation for Damage Article 17 Death and Injury of Passengers ... 1. The carrier is liable for damage sustained in case of death or bodily injury of passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking. [Emphasis of the Court.] ... Article 29 Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable. [Emphasis of the Court.] [27] The specific governing provision of the Montreal Convention of 1999 with regard to the defendants, Ian Rampersaud and Maria Sousa, being the servants and/or agents of the carrier, Skyservice, is Article 30(1). It provides: Article 30 Servants, Agents Aggregation of Claims 1. If an action is brought against servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention. [28] Chapter of the Montreal Convention of 1999 provides for situations in which the carriage of air was performed by person other than the contracting carrier. In this case those entities to which Chapter would be applicable include the defendants, MyTravel and Signature. These operators sold packages to passengers including airfare and then made arrangements with the carrier being Skyservice to include the international flight. Chapter thus has expanded the applicability of the Convention to entities previously not covered by the Warsaw Convention. [29] In particular, Article 39 provides: Chapter Carriage by Air Performed by Person Other Than the Contracting Carrier Article 39 Contracting Carrier Actual Carrier The provisions of this Chapter apply when person (hereinafter referred to as “the contracting carrier”) as principal makes contract of carriage governed by this Convention with passenger or consignor or with person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as “the actual carrier”) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary. [30] As well, Article 43, like Article 30, provides any servant or agent of carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under the Convention to the carrier whose servant or agent they are. [31] As previously stated, the Court accepts and agrees totally with the defendants’ argument that all of the defendants as named in the lawsuit are governed by the provisions of the Montreal Convention of 1999. That includes the defendant carrier, Skyservice, the contracting carriers, being MyTravel and Signature, and the agents and/or servants of the carrier, being Sousa and Rampersaud. The Montreal Convention of 1999 serves as the exclusive remedy for all passengers in Flight 361 as against all of the defendants. [32] The wording of Article 29 is clear and obvious. Any claim for damages of passenger of an international flight against carrier, contracting carrier or employee of either carrier can only be brought within the ambit of the Montreal Convention of 1999. [33] The applicant provided to the Court the case of Ruth Ann Reed, et al. v. Forwood Cloud Wiser, Jr., et al, 414 F.Supp. 863 (S.D. N.Y. 1976), wherein the issue before the United States District Court for the Southern District of New York was whether the Warsaw Convention’s limitation of liability provisions were applicable to employees of TWA. The legislation at the time being the Warsaw Convention had no definition of “carrier” and as such the court found that the Warsaw Convention did not limit the liability of employees or agents of carrier. [34] That loophole, so to speak, has been filled by the inclusion in the Montreal Convention of 1999 of the expanded limitation of liability provisions as contained in Article 30(1) to include the servants and/or agents of the carrier in this case being the defendants Sousa and Rampersaud and Article 39 with regard to the contracting carriers in this case being MyTravel and Signature. [35] The applicant also provided the Court with the decision of Akehurst and Others v. Thomson Holidays Ltd. and Britannia Airways Ltd., decision from Wales which involved claim against commercial passenger airline (Britannia) and package tour operator (Thomson) arising from crash landing. Although the court found that the claimants had no right of recovery against Britannia in relation to purely psychological injuries, in view of Article 17, liability was established against the tour operator for psychological injuries not because the tour operator was not covered by the Convention but because of the express terms of contract as between the tour operator and the plaintiff which allowed for the recovery of such damages. The court in that case was also dealing with the Warsaw Convention of 1929 as opposed to the provisions of the Montreal Convention of 1999, including Chapter V, which now recognizes the existence of both contracting carrier and actual carrier, and thus was of little assistance to the Court. [36] Although no specific case law was provided to the Court with regard to the Montreal Convention of 1999, there is ample case law with regard to its predecessor, the Warsaw Convention, as to its exclusive remedy for passengers. Those cases include Connaught Laboratories Ltd. v. British Airways (2002), 2002 CanLII 4642 (ON SC), 217 D.L.R. (4th) 717 (Ont. S.C.J.), aff’d (2005), 2005 CanLII 16576 (ON CA), 253 D.L.R. (4th) 601 (Ont. C.A.), at paragraph 26: 26 Further, as question of law, the Warsaw Convention would not be ousted in this situation. The goods were damaged in the course of transit between countries. There is remedy for that damage provided for in the Warsaw Convention. That being the case, the Warsaw Convention applies regardless of whether there might be other remedies available as matter of domestic law. ... The Warsaw Convention is meant to be an exhaustive source of remedies for damage sustained as result of international carriage by air. ... [37] As well, in McDonald v. Korean Air (2002), 26 C.C.L.T. (3d) 271 (Ont. S.C.J.), aff’d (2003), 26 C.C.L.T. (3d) 275 (Ont. C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 160, Hermiston J. concluded Article 17 of the Warsaw Convention was “exclusive and exhaustive” in respect of what the plaintiff could argue in terms of liability allegations. [38] Another case of note is Gal v. Northern Mountain Helicopters Inc. (1998), 1998 CanLII 6810 (BC SC), 54 B.C.L.R. (3d) 87 (B.C.S.C.), aff’d 1999 BCCA 486 (CanLII), 177 D.L.R. (4th) 249, in which the Court accepted that any remedies sought for personal injury suffered on an international flight were confined to the Warsaw Convention. At paragraphs 31 and 32 the court stated: [31] As well, have concluded that the plaintiff has no cause of action in negligence in light of this international carriage by air which brings it within the jurisdiction of the Warsaw Convention. The Warsaw Convention remedy pursuant to Article 17 is exclusive, that is, it extends to all claims made by passenger against carrier arising out of international carriage by air. See Article 24(1) and (2). [32] If the flight is one to which the Warsaw Convention applies, and am satisfied that it is, the plaintiff has no claim except for that permitted under the Warsaw Convention. See Sidhu v. British Airways PLC, [1997] All E.R. 193 (H.L.). [39] Accordingly, since Flight 361 was an international flight to which the Montreal Convention of 1999 applied with respect to all of the defendants, it is clear and obvious to this Court that the sole and exclusive claims that can be advanced by the plaintiffs are claims that must be launched pursuant to Article 17, Paragraph 1, of the Montreal Convention of 1999. In light of that, the plaintiffs’ claims outside the ambit of the Montreal Convention of 1999 in negligence, breach of contract, unlawful confinement and the request for punitive damages as outlined in the statement of claim do not disclose a cause of action. [40] Nor has the applicant established that cause of action exists within the meaning of Article 17(1) of the Montreal Convention of 1999. [41] Article 17(1) of the Montreal Convention of 1999 provides remedy for passengers who have been injured on international flights. If passenger sustains “bodily injury” as result of an accident which took place on board the aircraft or in the course of embarking or disembarking, the carrier is liable without proof of fault on the part of the carrier. strict liability regime has been set up with cap of damages established within the Convention if the passenger fits the criteria as set out in Article 17(1). That would be the sole and exclusive remedy available to the passenger. [42] It must be established that passenger sustained “bodily injury.” In this case there is absolutely no evidence of “bodily injury” in any of the materials filed by the applicant, including the amended statement of claim and affidavit material. There is no evidence that any bodily injury was sustained by either the proposed representative plaintiff or any of the other passengers in the aircraft during the international flight. [43] It is settled law that for a passenger to have access to Article 17(1), the individual must have suffered a bodily injury as opposed to mere mental anguish. The case law, as established, interpreting Article 17 of the Warsaw Convention (almost identical to Article 17 of the Montreal Convention of 1999) is entirely consistent that an individual must have suffered from bodily injury being palpable, conspicuous or physical injury (Rosman v. Trans World Airlines, Inc., 34 N.Y.2d 385 (1974)) as opposed to mere anguish or psychological injury. [44] “Bodily injury” pursuant to Article 17 has been described as “direct, concrete bodily injury as opposed to mere manifestation of fear and anxiety in Carey v. United Airlines, 255 F.3d 1044 (9th Cir. 2001). [45] There is some limited acceptance for psychological injury causally connected to recognizable bodily injury in very specific circumstances as was determined in Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2nd Cir. 2004), as stated by the United States Court of Appeals for the Second Circuit: ... Our exhaustive examination of these sources leads us to conclude that carrier may be held liable under Article 17 for mental injuries only if they are caused by bodily injuries. [46] Also Terrafranca v. Virgin Atlantic Airways, 151 F.3d 108 (3rd Cir. 1998), provided that the only situation in which psychological injury is compensatory is when the psychological injury flows directly from bodily injury. [47] As previously pointed out, the court recently in Wales in Akehurst and Others v. Thomson Holidays Ltd. held that the tour operator was not liable for psychological injuries suffered by the claimants as result of the application of the Warsaw Convention but liable contractually independent of the Warsaw Convention. [48] Having accepted the allegations as true as contained in the statement of claim, the only facts the Court has before it is that the environmental conditions on the aircraft threatened the health and lives of the passengers. As well, in addition to the prolonged physical pain and duress, the on‑going discomfort triggered psychological and/or emotional trauma which increased as the ordeal persisted. [49] Even if the Court were to consider in addition to the facts pleaded in the statement of claim the evidence as contained in the affidavits of Thomas Walton in determining whether it had “any evidence” of bodily injury, the most that Mr. Walton swore to was that the passengers he could see were sweat‑soaked, disrobing and red faced. Babies were crying and even shallow breaths had become difficult for him and his wife. [50] At best, what has been pleaded is physical discomfort as opposed to bodily injury as contemplated by Article 17(1). [51] The Court has carefully considered the deficient information as disclosed by the proposed representative plaintiff regarding any “bodily injury” as well as the affidavit material filed by the defendants and, in particular, the five flight attendants and Maria Xavia. All of the flight attendants have sworn that while it was somewhat uncomfortable on the plane before the air conditioning was able to be started, at no time were any medical forms completed by any flight attendant which would have been required if any medical treatment had been sought by any passenger and provided by the flight crew. [52] Having determined that it has not been established by the applicant that any bodily injury had been sustained by any of the passengers on Flight 361 or that any psychological injury had been sustained as a result of any bodily injury as required within the meaning of Article 17(1) of the Montreal Convention of 1999, as a matter of law it is plain and obvious that the claim does not raise a reasonable cause of action as within Article 17(1) of the Montreal Convention. [53] The applicant’s counsel argued that in the event that the Court was to determine that the Montreal Convention of 1999 was applicable and was to determine that the Applicants had not sustained “bodily injury”, that the Court should allow the applicant to amend its amended statement of claim to bring the claim within the ambit of the Montreal Convention of 1999. That, according to the applicant, was clearly available to the Court pursuant to Section 7(1) of the Act. [54] The Court is not prepared to grant the applicant leave to amend their claim as, under the circumstances of this case, it would not be appropriate. The Court accepts that the applicant has candidly put forth his best evidence as to what transpired to he and the other passengers before Flight 361 took off for Canada from Punta Cana, Dominican Republic. It would not be feasible to the Court that the applicant would now put forth affidavit material that the passengers all suffered from something other than discomfort or anxiety. On the chance that an individual passenger did sustain bodily injury, certainly he or she could pursue litigation against the appropriate defendants independent of this application for class action. But as class, to allow the applicant the opportunity of amending his materials would serve no useful purpose. If Mr. Walton or any of the passengers had sustained any bodily injury, the Court would have expected that fact to have been pleaded. The Court assumes that it was not pleaded because no passenger on that plane sustained anything more than short term discomfort. While certainly the Court acknowledges that the situation that arose was understandably irritating, at the end of the day, in the year 2004, is to be regrettably expected as part of today’s perils of air travel. [55] For all the reasons as outlined herein the applicant has failed to establish the first criteria as set out in s. 6(a) of the Act, and the application for certification shall be dismissed on that basis alone. [56] However, in the event the Court is in error in that regard, the Court wishes to briefly outline its reasons why it would have dismissed this application for certification on each of the other four criteria as outlined in s. of the Act. (2) Section 6(b) identifiable class [57] At first blush it would appear that “215 passengers of Flight 361” would certainly be an identifiable class; however, it is not quite that simple. [58] The applicant bears the onus of establishing that group of people have the same causes of action against the defendants about common issues. The Court has concern that very few, if any, of the other passengers on the flight other than Mr. Walton and his son‑in‑law, Mr. Slusar, wish to take action as against the defendants. At most, Mr. Walton in paragraph 19 of his affidavit sworn February 2, 2005, states: ... That have had contact with many of the individuals who were on board this aircraft and attached to this my Affidavit and marked as Exhibit “A” is list of those people together with their place of residence and phone numbers. [59] And at paragraph 20(d): 20 ... (d) have the support of at least 165 passengers, either individually or through group representative, out of the approximately 215 passengers. These individuals have contacted me and entrusted me to act on their behalf. believe would have nearly 100% support of the passengers if had way to contact all of them; [60] The Court has difficulty in accepting that all of these people Mr. Walton is referring to wish to commence an actual action as against the defendants as opposed to just standing behind Mr. Walton. Of significance to the Court is the material filed by the applicant, including statements from several other passengers whose concerns can be categorized as general venting against the airline as opposed to filing specific complaint, as well as the large amount of evidence as filed by the flight attendants who all consistently have sworn that while the cabin of the aircraft was somewhat uncomfortable for period of time, at no time was any airline personnel required to complete medical report for any passenger on Flight 361 which would have been required if any form of medical attention or treatment had been provided on the aircraft. In other words the suggested identifiable class is very overstated and over‑inclusive. [61] An identifiable group is not just group of people. As stated by our Court of Appeal in Jameson Livestock Ltd. v. Toms Grain Cattle Co. Ltd., 2006 SKCA 20 (CanLII), [2006] S.J. No. 93 (QL), at paragraph 28: 28 However, the mere fact that group of people is identifiable is not sufficient to render them class for the purpose of class action. In addition, there must be rational connection between the proposed class definition, the proposed causes of action and the proposed common issues. In effect, the class description must describe persons who in fact have claim asserted in the statement of claim. This has often been interpreted to mean that all members of the proposed class must have at least colourable claim and that the class definition should not be over‑inclusive or under‑inclusive, sweeping in those who do not have claim against the proposed defendants or arbitrarily excluding others who share the same cause of action. ... [62] The individual circumstances of each passenger would have to be analyzed in depth both as to how they booked his or her vacation, their reaction to the unfortunate situation as well as what transpired after the flight, e.g., whether or not they accepted the settlement and cashed in his or her settlement cheque. [63] In this case, assuming the passengers exclusive remedies are as contained in the Montreal Convention of 1999, it would have to be established they had sustained “bodily injury” or psychological injury resulting from bodily injury. At this time there is no evidence that the proposed representative or any of the other passengers suffered from any bodily injury as opposed to anxiety. There is no identifiable class of passengers who have cause of action against anyone and thus there is no identifiable class. [64] Even in the event any of the passengers were entitled to pursue claim, there is no properly identifiable class. As stated earlier, there are too many variables in the claims for negligence, unlawful confinement and breach of contract. [65] With regard to the unlawful confinement as against the pilot, there is only the evidence of Mr. Slusar that he was not allowed to leave the aircraft; no one else. One person, namely, Mr. Slusar, does not constitute class. [66] With regard to the claim in negligence, consideration in each case would have to be given to the defendants’ duty, particular breach of that duty, the cause of any damage and the particular damages to each passenger in light of the specific circumstances of each individual passenger. If individual circumstances have to be looked at, that is not an identifiable class. [67] Also the claims of breach of contract as against the defendants, MyTravel and Signature, would need individual analyses into the circumstances of each passenger. Extensive analysis would be needed. Some passengers booked packages through MyTravel, some passengers booked packages through Signature and some passengers booked their trip themselves through the internet or other means. There would be different terms and conditions attached to these different modes of contracts that would have to be analyzed. [68] As well, there is the matter of 149 of the passengers having signed releases and cashed in the settlement cheques sent to them. What would be required is the individual circumstances of each passenger being analyzed, precluding there being true identifiable class. (3) Section 6(c) common issues [69] For all the reasons that it would be impossible to identify an identifiable class, it would be unrealistic and almost impossible to find that there were common issues as between all of the passengers and all of the defendants. There are numerous scenarios that would arise depending upon the unique and specific circumstances of each passenger. [70] It is impossible at this stage to state with any certainty the different situations of the passengers other than to say that there are many different situations and thus there is less likelihood that there are any common issues that can be applied straight across the board. (4) Section 6(d) Preferability [71] The preferability analysis is based on and guided by the three principal advantages of class actions identified by the Supreme Court of Canada in the trilogy: judicial economy, access to justice and behaviour modification. [72] The number, complexity and significance of the individual issues and common issues are each key components in determining whether class proceeding is preferable. [73] While the five factors as outlined in s. of the Act individually are not basis to refuse certification, it is also quite clear that their presence can be looked at in examining the preferability of class proceeding. [74] It is extremely clear that court is not to simply assume that class action is preferable procedure because of its theoretical advantages. There are several U.S. decisions that have denied certification in aircraft accident cases, including Marchesi v. Eastern Airlines, 68 F.R.D. 500 (E. N.Y. 1975), and Sioux City v. United Airlines, Inc., 1990 U.S. Dist. LEXIS 181 (N.D. (E. Div.) Ill. 1990). [75] As stated in numerous cases, such as the case here, class action is not preferable procedure where the causes of action, the damages alleged and the issues proposed by the plaintiff as being common were dependent upon the class members individually establishing their claims against the defendant. [76] Considering the facts of this case, as whole, class action would be completely unmanageable, and certification would result in multitude of individual trials which would completely override any advantage that might be derived from trial of few potential common issues. [77] The prospect would be large in this case for third party claims in the breach of contract cause of action as against numerous travel agencies. That alone would be reason enough to render class proceedings unduly complicated and unmanageable as was found in Sutherland v. Canadian Red Cross (1994), 1994 CanLII 7243 (ON SC), 17 O.R. (3d) 645 (Ont. Ct. Gen. Div.). [78] In addition, the issue of the releases signed by some of the passengers also is of great concern to the Court and would be large factor in not proceeding by way of class action. [79] Although, as it turns out, not of great importance considering the decision of the Court in this certification application, the Court has grave concerns as to the deficiency of the proposed litigation plan. There is absolutely no detail in the applicant’s plan to allow the Court to assess the ability of the action to proceed in class context if it had decided otherwise and would have required substantial amendments. [80] Lastly, if any of the passengers were to pursue claim against the defendants, the individual claim would be straightforward pursuant to the provisions of the Montreal Convention of 1999. The Convention assumes strict liability against all of the defendants in this case. The only issue to be determined would be if the individual passenger sustained “bodily injury” and, if so, what the appropriate damage would be. There would be no need for complicated scientific expert evidence; simple calculation of damages. (5) Section 6(e) the representative plaintiff [81] In the event the Court had determined that there was an identifiable class, Thomas Walton would not have been the appropriate person to fairly and adequately represent the interests of the class for numerous reasons, including the fact he had booked his vacation through Signature as opposed to other passengers booking through MyTravel. He could not fairly and accurately represent those persons who booked their vacation through MyTravel or by themselves through the internet or other means. [82] As well, he was not one of the 149 persons who cashed in the settlement cheques and thus could not fairly or adequately represent those passengers who did. Again, there are just too many variables for any one passenger to fairly and adequately represent all of the interests of all of the passengers. That is not to say that his intentions were not sincere they were but impossible to accomplish in the circumstances of this case. [83] As stated before, his plan for the class action certainly lacked detail, and the Court, if it had granted the certification application, would have required much more detailed plan be put forward with regard to advancing the class action. [84] For all the reasons as outlined in this judgment, the certification application is dismissed. Most importantly, the pleadings do not disclose cause of action. The negligence, unlawful confinement and breach of contract claims cannot be made outside the provisions of the Montreal Convention of 1999 as the claims being made were by passengers on an international flight. The Montreal Convention of 1999 clearly applies to any claim being pursued by any of the passengers against the defendants in this case. [85] Nor is there any cause of action as against any of the defendants within the ambit of the Montreal Convention of 1999 on the evidence presently before the Court as there is no evidence that any of the passengers in Flight 361 suffered from anything other than mental distress or anxiety. It is necessary to establish that the passenger sustained bodily injury. That is fatal to any claim they may have had against any of the defendants pursuant to the Montreal Convention of 1999, resulting in no cause of action. [86] As well, none of the other criteria as outlined in s. of the Act have been met by the applicants. There is need for any potential claims of the passengers in Flight 361 to be individually assessed both as to liability and damages. Thus, the application for certification is denied. J. M.L. Dovell QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 231 Date: 2006 05 16 Docket: Q.B.G. No. 1055/2004 Judicial Centre: Saskatoon BETWEEN: THOMAS WALTON, DR. VANCE CHOW and MEGAN ENGEDAHL, suing by her litigation guardian, WENDY ENGEDAHL, and MYTRAVEL CANADA HOLDINGS INC., SKYSERVICE AIRLINES INC., SIGNATURE VACATIONS LTD., IAN RAMPERSAUD and MARIA SOUSA, Counsel: Ronald P. Piché for the plaintiffs Bruce W. Wirth for the defendants CORRIGENDUM July 20, 2006 DOVELL J. to Judgment of May 16, 2006 (2006 SKQB 231) [87] On page 3, para. [7], line 5, “Holidays” should read “Holdings”. J. M.L. Dovell
The plaintiff applies for certification pursuant to The Class Actions Act on behalf of himself and the other passengers of an international flight from the Dominican Republic to Regina. The flight was delayed for about 1.5 hours at the Dominican Republic airport as result of several mechanical difficulties. The claim is with respect to alleged negligence, unlawful confinement and breach of contract. HELD: The applicant has failed to establish the first criteria as set out in s. 6(a) of the Act. The application for certification is dismissed on that basis. 1) The court accepts that all of the defendants are governed by the provisions of the Montreal Convention of 1999. The wording of Article 29 of that agreement is clear. Any claims for damages of passenger of an international flight can only be brought within the ambit of the Montreal Convention of 1999. The court reviewed the cases and found that the plaintiff's claims outside the ambit of the Montreal Convention of 1999 in negligence, breach of contract, unlawful confinement and punitive damages do not disclose a cause of action. 2) The sole exclusive remedy available to passengers is set out in Article 17(1) of the Montreal Convention of 1999. strict liability regime has been set up with cap of damages where passenger sustains 'bodily injury' as result of an injury that occurs in the course of embarking or disembarking. It is settled law that for a passenger to have access to Article 17(1), the individual must have suffered a bodily injury as opposed to mere mental anguish. It has not been established that any bodily injury has been sustained by any of the passengers on Flight 361. It is plain and obvious that the claim does not raise a reasonable cause of action. Corrigendum received dated July 20, 2006 and added to fulltext.