Airline Customer Service Issue Creates Liability Under the Montreal ConventionGontcharov v. Canjet, 2012 ONSC 2279 (CanLII)
Originally published on October 3, 2012 on the Alexander Holburn Beaudin + Lang LLP Aviation Law Blog: http://aviationlawblog.ahbl.ca/
Mr. Gontcharov travelled by air from the Dominican Republic to his home in Toronto. During the flight, he complained to the flight attendant that he was cold and requested that she either turn the heat up or provide him with a blanket. After a second request, the flight attendant told him the blanket would cost ten dollars. This discussion escalated into a confrontation so that when the aircraft landed, Mr. Gontcharov was escorted off the aircraft by two local police officers.
Mr. Gontcharov sued the airline alleging that he had come down with severe bronchitis following the flight and had suffered psychological injuries as a result of his “wrongful arrest”.
Claims arising in the course of international carriage, are governed by the Carriage by Air Act, a Canadian Statute which incorporates the Convention for the Unification of Certain Rules of International Carriage by Air – Montreal (the “Convention”).
The air carrier brought an application to dismiss the claim as disclosing no cause of action.
Article 17(1) of the Convention imposes liability on the carrier for bodily injury of a passenger caused by an “accident” which occurred on board the aircraft or in the course of embarking or disembarking.
The Court found (click here for decision) that the refusal by airline employees to provide the Plaintiff with a blanket or warmth during the flight amounted to an “accident” within the meaning of Article 17 of the Convention. Since the “severe” bronchitis, which the Plaintiff subsequently contracted, constitutes “a bodily injury”, the Court found that Article 17 of the Convention applied and refused to strike that part of the claim.
However, the Court did strike out the Plaintiff’s claim for psychological injuries or mental distress arising from his arrest upon arrival in Toronto. The Court concluded that although the arrest which began on board the aircraft fell within the meaning of the term “accident” as broadly interpreted, the Plaintiff could not recover damages for psychological injuries which do not meet the accepted definition of “bodily injury” under the Convention. On this rationale, the Court struck out the Plaintiff’s claim arising from the alleged wrongful arrest.
The inconclusive discussion of the facts in this case are due in part to the nature of the hearing, which was a pre-trial motion to dismiss Mr. Gontcharov’s lawsuit. These hearings turn simply on an interpretation of the Statement of Claim, the document filed with the Court which initiates a lawsuit.