July & August 2023


MANDATORY RETIREMENT FOR COMMERCIAL PILOTS

Adam P. Strömbergsson-DeNora

  1. Mandatory retirement for commercial pilots is a perennial issue that attracts human rights challenges. Pilots have, on the whole, not made out well with these attempts: tribunals and courts side with air operators’ restriction on working as a pilot past sixty. In spite of this adversity (and perhaps because pilots are, on the whole, a stubborn bunch), yet another challenge is winding through the Canadian Human Rights Tribunal process, this time targeting Air Canada’s and the Air Canada Pilot’s Association’s mandatory retirement policy. 
  2. The challenge remains before the Human Rights Tribunal; it has recently been the subject of a Federal Court judicial review decision. The applicants sought review of the Tribunal’s decision to use Air Canada pilots as the comparator group for industry practices in Canada. This group is important because it is the measure of industry standards for pilots in Canada. If Air Canada’s pilots, who easily outnumber other pilot groups in Canada, are the group by which any legal challenge against industry standards is measured, any challenge by Air Canada’s pilots that is measured against industry standards is bound to fail.
  3. This challenge attacks the Air Canada pilots’ collective agreement as discriminatory on the basis of age. Its core argument mimics the challenge in Thwaites / Adamson: mandatory retirement at age sixty is discrimination on the basis of age.
  4. The innovation in this case is its target: by attacking the collective agreement, the applicants effectively allege that their union failed to properly represent them when negotiating the collective agreement. This allegation, though not made in so many words, creates room for new arguments again pilots’ unions’ authority.
  5. The distinguishing feature of this challenge is its focus on finding the appropriate comparator group of pilots. The applicants’ argue that the comparator group must look beyond Air Canada to allow for other airline practices or safety cultures. Air Canada and the union defeated this argument at the Tribunal by relying on Air Canada’s employment of the majority of commercial pilots flying for large airlines. The Tribunal agreed with this approach, which is backed by precedent.
  6. The danger with this approach is that it makes Air Canada and its pilots’ union legislators. Any Canadian human rights challenge against industry standards will be compared with Air Canada’s standards. If Air Canada sets the standard, its standard cannot come under scrutiny under the Canadian Human Rights Act. This legislated reality creates problems for Air Canada’s pilots, for it allows their employer and union to evade scrutiny under the Act.
  7. With this concern in mind, the pilots’ choice of forum in this case may also undermine their case. The alleged discrimination is that the union negotiated a collective agreement that disadvantages pilots on the basis of age. The union’s duty of fair representation includes preventing discrimination against its members and not itself discriminating against members (section 37 of the Canada Labour Code). The union may thus be vulnerable for having negotiated an agreement that openly discriminates against pilots who reach or exceed sixty years of age.
  8. The question of union liability for negotiating a discriminatory collective agreement provision has not been addressed. The union has been challenged for applying the mandatory retirement provision in a discriminatory manner, but that challenge failed because the union is entitled to negotiate unfavourable terms for a minority group in a collective agreement (2011 CIRB 619, paras. 34-5). The underlying issue, whether the union had a rational basis for negotiating the discriminatory provision, has not been raised at the Canada Industrial Relations Board.
  9. The applicants did not, moreover, frame their Federal Court challenge as a Charter issue, yet the Charter seems to play up in these circumstances. The Canadian Human Rights Act must be read alongside the Charter. It must also operate in harmony with the Canadian Bill of Rights. The Charter and Bill conflict with the Act in this case because the Act authorizes the discrimination and deprives the applicants of a fair review of the discriminatory conduct: the CHRT is empowered to measure the respondents’ standards against the respondents’ standards. This weakness derives from the Canadian Human Rights Act, the structure of which favours Air Canada and its pilots’ union at individual pilots’ expense. The offending provision may be read down or read in harmony with the Charter and Bill, which reading could obligate the Tribunal to account for other practices at other airlines.
  10. These arguments, however, will have to wait for another day. Pilots have been tilting at this particular windmill for decades—with little success. The answer to a mandatory retirement age for commercial pilots may rest with unions and employers; it may eventually be a matter for the Canadian Aviation Regulations or the Aeronautics Act, but these instruments are more open to Charter challenges.
  11. For the moment, Air Canada pilots are (yet again) left with mandatory retirement at age sixty.

CASE LAW

June 22, 2023–Roberts v Flair Airlines LTD–2023 BCCRT 525

  1. AIR PASSENGER RIGHTS–Pax. claimed cancelled flight compensation after she made multiple attempts to obtain information about travelling with her dog. Pax. booked flight through third-party website before knowing whether she could travel with dog. Pax. cancelled flight two days after booking. Flair responded to Pax. inquiry four days after booking. Pax. was not entitled to a refund because she canceled outside the grace period. Flair’s communication was reasonable and made in a timely fashion. Pax. claims could not succeed.

June 22, 2023–Thomas v Aeolus Air Charter, Inc.– 2023 U.S. Dist. LEXIS 128213

  1. WRONGFUL DEATH–Court granted plaintiff’s motion to remand and remands matter to the Superior Court of California. Plaintiff was the successor-in-interest to Ryan Thomas, Decedent, who died when Defendant’s private plane crashed. Since there were no substantial federal issues in the context of the case and the federal system, remand was appropriate.

June 29, 2023–Air Canada v Canadian Union of Public Employees–2023 CanLII 58239 (CA LA)

  1. ARBITRATION—Letter of Understanding 35 (LOU 35) provided that annual wage increases would be subject to further negotiations if the consumer price index of the previous year exceeded wage increases by a certain amount. Although there was a dispute over whether the obligation to negotiate was even triggered, the parties did negotiate, without reaching a substantive agreement to increase wages. Did the Company exhaust its obligations by virtue of engaging in negotiations, or was the Union entitled to a further substantive outcome?
  2. Although negotiations were unsuccessful, the Union was not entitled to any additional remedy. LOU did not require that negotiations result in a substantive agreement to increase wages; did not provide the arbitrator with the jurisdiction to amend the Collective Agreement to increase wages; and did not establish that the Company had breached its obligations under LOU 35 such that a further remedy was warranted.

July 6, 2023–Warbird Adventures, Inc. v FAA–2023 U.S. App. LEXIS 17046

  1. FLIGHT INSTRUCTION–Petition for review of a FAA decision finding that, by providing flight instruction in a “limited category civil aircraft,” Warbird violated the prohibition against operating such an aircraft “carrying persons or property for compensation for hire,” and ordering Warbird to pay a civil penalty. The court found no reversible error in the agency’s final decision. “Carrying persons” under s. 91.315 covers flight instruction. The petition for review was denied.

July 10, 2023–United States v Stewart–73 F.4th 423

  1. REVOKED OR SUSPENDED AIRMAN’S CERTIFICATE–Defendant-Appellant’s private pilot license was temporarily suspended by the FAA. When Defendant-Appellant continued to fly, the FAA permanently revoked his airman’s certificate. Defendant-Appellant kept flying and received a criminal conviction for flying without authorization, which he now challenges. The district court denied Stewart’s motion to dismiss; this was affirmed by the court of appeals.

July 13, 2023–Ashraf v Jazz Aviation LP–2023 BCCA 284

  1. JURISDICTION–Did the BCSC have jurisdiction to adjudicate the claims of a former Jazz Aviation LP employee where the claims were related to his employment and governed by the collective agreement? If a dispute arises from a collective agreement, it should be resolved through arbitration unless the remedy sought is unavailable or would be insufficient: Weber v Ontario Hydro (1995) and New Brunswick v O’Leary (1995). Emphasizing that the appeal lacks merit, the court also ordered the former employee to post security for costs of $10,000, and the appeal was stayed until security was posted. If security was not posted, the respondents had the option to apply to have the appeal dismissed as abandoned.

July 13, 2023–Nedelec v Rogers–2023 FC 950

  1. MANDATORY RETIREMENT–Judicial review of an interlocutory decision of the CHRT. Complaint by former Air Canada pilots alleging age discrimination. Application dismissed. The application was premature.

July 20, 2023–Zone Five, LLC v. Textron Aviation, Inc.–73 F.4th 423

  1. LATENT DEFECT IN AIRCRAFT—Hundreds of Plaintiffs allege that the Defendant designed and manufactured an aircraft with latent defects which caused serious safety of flight issues. Defendant promised to fix the problems but never did. The plaintiffs’ motion for leave to amend the complaint was granted.

July 21, 2023–Perovic v Flair Airlines Ltd–2023 BCCRT 609

  1. AIR PASSENGER RIGHTS–To what extent are pax. entitled to compensation for travel expenses incurred as a result of two flight cancellations under the APPR or the parties’ contract? Flair twice cancelled and rebooked pax. return flight, not for safety reasons, and with at least 12 hours’ notice. The pax. did not successfully establish that there were contractual or tariff terms that obligated Flair to compensate them beyond Flair’s obligations under the APPR. Pax. were awarded the standard compensation under the APPR for inconvenience plus reimbursement for CRT fees.

July 25, 2023–S.M. v Westjet Airlines Ltd.–2023 BCCRT 622

  1. AIR PASSENGER RIGHTS–Connecting flight cancelled by WestJet believing pax. would not make the connecting flight. Westjet’s belief was incorrect and resulted in a nine-hour delay to pax. before reaching their final European destination on the rebooked connecting flight. Pax. sought $5,000.00 in compensation. Phrase “denial of boarding” has defined meaning that “essentially means overbooking”. Westjet had not overbooked the flight; pax. were running late through no fault of their own. Damages set at $743.40, plus interest and costs, because Westjet did not notify pax. of minimum connection times.

August 8, 2023–Mohamed v Air Canada–2023 BCCRT 661

  1. AIR PASSENGER RIGHTS–Was the pax. flight delay of over 56 hours within Air Canada’s control, therefore obligating Air Canada to compensate pax. under the APPR? Pax. claimed that the flight was delayed due to staffing issues. Air Canada claimed that the flight was delayed due to air traffic control constraints.
  2. Air Canada was in the best position to provide evidence explaining the delay of its own flights, and Air Canada failed to show that the primary cause of the delay was outside of Air Canada’s control. Therefore, Air Canada was required to compensate each inconvenienced pax. $1000 under the APPR, plus half of their CRT fees. However, Air Canada had no obligation to briefly delay the pax. connecting flight to await their arrival, even though the connecting flight was expected to arrive 13 minutes early.
  3. Since compensation was owed to the inconvenienced pax., the claimants did not have standing to claim compensation for their other family members, even though the claimants purchased the tickets on the other family members’ behalf.

August 16, 2023–Berenguer v Sata Internacional – Azores Airlines, S.A.– 2023 FCA 176

  1. AIR PASSENGER RIGHTS—Appeal from an action dismissed on the basis of preliminary motions. Pax. commenced a proposed class action against a foreign carrier seeking compensation for flight delays to or from Canada. According to the FCA, the FC erred in concluding that it was plain and obvious that the pleading did not disclose a reasonable cause of action. However, the FCA upheld the FC’s conclusion that the requirements for certification were not satisfied.

August 21, 2023–Qi v Swoop Inc–2023 BCCRT 709 

  1. AIR PASSENGER RIGHTS–Is Swoop a large carrier under the APPR obligated to pay an inconvenienced pax. $1000, or a small carrier obligated to pay $500? Swoop did not dispute that the pax. flight was delayed over 9 hours due to reasons within Swoop’s control (a crew shortage). Carrier size was defined based solely on passenger numbers, and the Member did not have discretion to depart from the compensation scheme under the APPR. It was not relevant that a large carrier (WestJet Inc.) owned Swoop and planned to absorb it eventually. $500 in compensation, $125 in CRT fees, and pre-judgment interest were awarded to the pax.

CTA DECISIONS

June 23, 2023–Application by Shawn Lajeunesse and Shu-Hui Liu (applicants) against Ethiopian Airlines (respondent), regarding a refusal to transport–Decision No. 106-C-A-2023

  1. REFUSAL TO TRANSPORT–The respondent carrier failed to apply its tariff correctly when it refused to transport Ms. Liu, who had a valid electronic travel authorization (eTA) linked to her passport. The carrier’s claim of a system issue lacked evidence. Ms. Liu’s husband declined to board when his wife was denied boarding. However, since he was not refused transportation, he was not eligible for compensation. This was not a case of denial of boarding, since the flight was not oversold. The APPR did not have the authority to award compensation for inconvenience and stress, or general damages, in a situation of refusal to transport. Ms. Liu was entitled to compensation for her share of the hotel accommodation, a taxi, and food and drink expenses ($355.63 CAD total).

June 23, 2023–Application by Yves Benoit against Société Tunisienne de l’Air (Tunisair) regarding a flight delay–Decision No. 107-C-A-2023

  1. DELAY–A flight delay caused pax. to miss his subsequent flight and pay for a hotel room. The carrier’s tariff incorporated by reference the liability rules set out in the Montreal Convention, which provide that the carrier will be liable for damage occasioned by delay unless it proves that it took all measures that could reasonably be required to avoid the damage or that it was impossible to do so. Since the carrier did not file an answer to the application, pax. claim was accepted as undisputed. Pax. was therefore entitled to compensation for the cost of the replacement ticket and hotel room. 

June 29, 2023–Application by Joel Brillert against WestJet regarding a refund–Decision No. 109-C-A-2023 

  1. REFUND–Pax. claimed that he changed his ticket date and class based on advice from the carrier’s representative that no flights would operate after March 25, 2020. This advice was ultimately untrue, and pax. could have travelled with his original ticket. Pax. claimed compensation for the $421 difference in fare. Pax. claim was unsuccessful. The carrier properly applied its tariff by charging pax. the difference in fares. The tariff further provided that no employee, agent or representative of the carrier is authorized to bind it by any statement or representation regarding the operation of any flight.

June 29, 2023–Application by Maher Al-Huq against ABC Aerolineas, S.A. de C.V. (Interjet) regarding damaged baggage–Decision No. 110-C-A-2023

  1. DAMAGED BAGGAGE–Pax. filed an uncontested claim stating that his checked baggage had been damaged during the flight. Pax. substantiated his claim with a copy of the Property Irregularity Report filled at the airport at time of arrival, his email correspondence with the carrier, and photographs. The Member found that the baggage was damaged. The carrier was liable for this damage according to its tariff, which incorporated the Montreal Convention. Pax. was entitled to $460. 

July 5, 2023–Application by Maryam Rashidian against Air Canada and Lufthansa regarding barriers to mobility–Decision No. 111-AT-C-A-2023

  1. LACK OF WHEELCHAIR ASSISTANCE–Pax. travelled from Toronto to Frankfurt with Air Canada and from Frankfurt to Germany with Lufthansa. At the airport in Toronto, pax. asked Air Canada for wheelchair assistance in the Frankfurt airport, but claimed she did not receive it. Pax. sought a refund of the cost of her and her family members’ tickets. Pax. claim against Air Canada was dismissed because she did not demonstrate that she faced a barrier attributable to Air Canada. Air Canada acted correctly by relaying pax. request to the airport’s designated contractor, who provided pax. with the required assistance. The Member did not address pax. claims that an Air Canada employee shouted, insulted, threatened, or pointed their finger at her, or Air Canada’s claims that pax. “refused to relinquish” another passenger’s wheelchair and was aggressive. Pax. claim against Lufthansa was dismissed because Lufthansa was not involved in the incident.

July 12, 2023–Application by Anitta Thomas and Joseph Kuriakose Nedumkaryil (applicants) against Swoop Inc. (respondent), regarding a refund–Decision No. 112-C-A-2023

  1. FARE REFUND–Were pax. entitled to receive compensation for their non-refundable travel tickets after their decision not to travel due to COVID-19 precautions during March 2020? Pax. sought either a refund of the ticket cost or the opportunity to travel on a future date. Applying the terms and conditions of the tickets, the Member found that the pax. did not avail themselves of any of the prescribed opportunities to mitigate their losses (e.g. by cancelling more than 7 days prior to departure, etc.). Pax. claim was dismissed. 

July 12, 2023–Application by Edwin David Batres Villagron (applicant) against ABC Aerolineas, S.A. de C.V. (Interjet) [respondent] regarding the loss of their piece of baggage–Decision No. 94-C-A-2023

  1. LOST BAGGAGE–The pax. piece of baggage was lost by the respondent carrier while in the respondent’s care, and the respondent failed to properly apply its Tariff when it did not provide compensation. Since the respondent did not file its tariff with the Agency, the Member applied the APPR instead. Pax. sought compensation for the value of the lost items, the baggage itself, and the fees paid for checking the baggage. Since pax. did not establish the checking fees paid, this aspect of the claim was dismissed. The Member awarded the maximum compensation at the time of the incident, 1,288 Special Drawing Rights equivalent to CAD $2,319.25. 

July 17, 2023–Application by Carmen Lidia Diaz Horna, Santiago Eugenio Acosta Diaz and Eugenio Acosta Lopez (applicants) against ABC Aerolineas, S.A. de C.V. (Interjet) [respondent] regarding flight cancellations–Decision No. 114-C-A-2023

  1. REFUND–Were pax. entitled to a refund for the five round-trip tickets they purchased from the respondent? The pax. attempted to substantiate their claim with documents (emails) that were filed neither in English nor French, and without providing translation of the documents. The documents were not placed on the record of the proceeding. The pax. application was dismissed due to a lack of evidence demonstrating that the carrier cancelled the flights. The pax. did not show that the carrier failed to apply its tariff. 

July 21, 2023–Application by Omar Gaudreau and Victoria Bélanger (applicants) against Aerovias de Mexico S.A. de C.V. (AeroMexico) [respondent] concerning lost baggage–Decision No. 115-C-A-2023

  1. LOST BAGGAGE–The pax. two pieces of baggage were lost by the respondent carrier and never recovered. Pax. requested compensation corresponding to the value of their baggage and an apology for poor service. The respondent failed to properly apply the conditions of its tariff by failing to compensate pax. for lost baggage. The respondent was ordered to compensate pax. $2329.72, the maximum compensation limit under the Montreal Convention (lower than the claimed value of the lost items). The Agency did not have the authority to order the carrier to apologize. 

August 9, 2023–Application by André Thibault against Flair Airlines Ltd. (Flair) regarding a refusal to transport and a schedule irregularity–Decision No. 120-C-A-2023 

  1. REFUSAL TO TRANSPORT AND SCHEDULE IRREGULARITY–The pax. claim was dismissed because pax. did not meet his burden of proof. Pax. failed to demonstrate that he had tickets for the alleged flights with Flair and failed to demonstrate that Flair did not apply its tariff. Pax. sought no compensation. 

August 17, 2023–Application by Edouard Emile Fournier (applicant) against Aerovias de Mexico S.A de C.V. (AeroMexico) [respondent] regarding denial of boarding–Decision No. 125-C-A-2023

  1. DENIAL OF BOARDING–Pax. sought compensation under the APPR. The respondent carrier denied pax. boarding because the flight was overbooked. The carrier provided alternative travel arrangements and a one-year travel credit for $500 USD. Based on the carrier’s failure to file evidence demonstrating that the denial of boarding was outside of the carrier’s control or required for safety purposes, the Member found that the denial of boarding was within the respondent’s control. Pax. was awarded $1800 CAD. 

CASES BEFORE THE COURTS

December 6, 2022–International Air Transport Association v. Canadian Transportation Agency–2023 CanLII 74433

  1. CHALLENGE TO REGULATIONS– The applicant airlines challenged numerous provisions of the new Regulations on the basis that they exceeded the Agency’s authority under the CTA. They claim that the Regulations contravene Canada’s international obligations, in particular, the Convention for the Unification of Certain Rules for International Carriage by Air (“Montreal Convention“) and many of the Regulations’ provisions are ultra vires because they have impermissible extraterritorial effects, which violate fundamental notions of international law. The FCA dismissed the appeal, except concerning s. 23(2) of the Regulations which it found ultra vires of the CTA (this section deals with liability for temporary loss of baggage).

June 20, 2023–Investissements Nolinor inc. c. Aircraft Instrument and Electronics Ltd.–2023 QCCS 2271

  1. AIRCRAFT PURCHASE AND SALE–The motion to dismiss failed. The proceeding was split into two hearings. This was a dispute over purchase and sale of aircraft. The defendants argue that the plaintiff’s case has no chance of succeeding, as the aircraft purchased were on an “as is, where is” basis, and there is no factual basis for allegations of fraud related to missing documentation. The plaintiff contends that its case has a reasonable chance of succeeding, focusing on the seller’s obligation to deliver the aircraft and all necessary compliance documentation and claiming that the “as is, where is” clause cannot override this obligation.

August 17, 2023–International Air Transport Association, et al. v. Canadian Transportation Agency, et al.–2023 CanLII 74433

  1. CHALLENGE TO REGULATIONS–The application for leave to appeal was granted with costs. This case involves a challenge to the validity of regulations adopted by the Canadian Transportation Agency (“Agency”) to compensate air passengers for various delays, losses and inconveniences experienced in the course of international air travel.

LEGISLATIVE UPDATES

Minister of Transport introduces Bill C-52 to ensure accountability and transparency in the national transportation sector for Canadians

  1. The Canadian government, through the introduction of Bill C-52, known as the Enhancing Transparency and Accountability in the Transportation System Act, aims to improve the nation’s transportation sector in three key areas. Part I of the bill, known as the Air Transportation Accountability Act, seeks to enhance accountability within airports and other airport operators by establishing service standards, engaging the public on airspace changes affecting aircraft noise, promoting pollution reduction plans, and advocating for diversity reporting within federally incorporated airport authorities. Part II focuses on enhancing accessibility for persons with disabilities by requiring transportation service providers to collect and share accessibility data to identify and address barriers swiftly. Part III amends the Canada Marine Act to ensure transparency in port fee-setting processes and introduces a mechanism for challenging fee changes, reinforcing Canada’s commitment to efficiency, accessibility, and accountability in its transportation sector. Additionally, the bill enables the government to create regulations for alternative dispute resolution in port terminal leases and allows cost recovery for rate-setting and dispute resolution provisions by the Canadian Transportation Agency.

CIVIL AVIATION CONSULTATIONS

Let’s Talk Interference with CATSA Screening at Airports

  1. In recent years, there has been a concerning increase in the number of passengers exhibiting disruptive behaviour towards screening officers at airport checkpoints. This unruly conduct poses a significant threat to safety and security, not only at the screening area but also within the airport premises and aboard aircraft. To safeguard civil aviation and the well-being of airport and airline staff, as well as travellers, Transport Canada is proposing new regulations. These regulations aim to impose fines and bans on individuals who engage in disruptive behaviour that interferes with the Canadian Air Transport Security Authority’s (CATSA) screening procedures at airport checkpoints. Examples of such unruly conduct include using racist or offensive language, intimidating others, bullying, verbal and physical harassment, displaying hostility, engaging in violent actions, and damaging screening equipment. The goal is to deter and prevent ongoing disruptive behaviour to ensure the safety of all involved in air travel.

PICA-2023-001 – Global Aeronautical Distress and Safety System (GADSS)

  1. Transport Canada has extended the consultation period to September 15, 2023. The purpose of this document is to consult with Canadian aviation stakeholders on Transport Canada’s proposed approach to implementing GADSS requirements in Canada. Input received through this process will continue to guide the department as it determines the best means of further engagement with stakeholders and develops a regulatory proposal to implement GADSS.
  2. Submit your comments in writing to TC.CARConsultations-RACConsultations.TC@tc.gc.ca no later than September 15, 2023.

AMENDMENTS, PROPOSED AMENDMENTS, AND REGULATORY DOCUMENTS

Canada Gazette, Part I, Volume 157, Number 25: Regulations Amending the Canadian Aviation Regulations (RPAS – Beyond Visual Line-of-Sight and Other Operations)

  1. The Government of Canada aims to adapt its regulatory framework for remotely piloted aircraft systems (RPAS) to keep pace with technological advancements and unlock economic opportunities in the sector. In 2019, initial RPAS regulations addressed safety concerns for small RPAS flown within visual line-of-sight (VLOS). However, as technology evolves, the lack of regulations for medium-sized RPAS and beyond visual line-of-sight (BVLOS) operations hampers economic growth. The proposed amendments would permit routine BVLOS operations with RPAS up to 150 kg over sparsely populated areas, low altitudes, and uncontrolled airspace. This eliminates the need for case-by-case approvals, streamlining operations. New pilot certification, technical standards, operational procedures, and safety measures are proposed. The estimated costs of $26.02 million over ten years are outweighed by benefits totalling $40.23 million, resulting in an overall net benefit of $14.21 million. The “one-for-one rule” would reduce administrative burdens, benefiting small businesses, and TC has consulted internationally for harmonization.
  2. (Note: The figures are expressed in 2022 dollars, with discounts applied to 2024, and are presented in the Canadian context.)
  3. Amendments to Standard 507 – Flight Authority and Certification of Noise Compliance
  4. Tow Hitch and Release Control System (amended 2005/12/01) 
  5. Emergency Locator Transmitter
  6. Radiocommunication Equipment
  7. Radio Navigation Equipment
  8. Hand-Held Fire Extinguisher
  9. Aircraft Passenger Transportation Suit Systems
  10. Airworthiness Chapter 551 – Aircraft Equipment and Installation – Canadian Aviation Regulations (CARs) 
  11. Designation of International Airports in Canada
  12. Use of portable electronic devices
  13. SA CAT II: Special Authorization/Specific Approval and Guidance
  14. Oxygen – Portable Protective Breathing Equipment (PBE) – Missing PBE in the Forward Area of the Aeroplane
  15. Safety Valve – Opening During Normal Operation and Ingestion of Insulation Blankets
  16. Publication of Transport Canada Holdover Time (HOT) Guidelines, Winter 2023-2024
  17. Final version of amendment to section 551.103 of Airworthiness Manual Chapter 551
  18. NPA 2023-008 – Miscellaneous Amendments
  19. NPA 2023-011 – Amendments to Standard 507 – Flight Authority and Certification of Noise Compliance
  20. NPA 2023-007 – Rudder Control Reversal Conditions

TSB REPORTS

  1. Collision with terrain (Enroute)–Privately registered–Cessna 150 G
  2. Main rotor blade failure in flight–Unregistered–RotorwayExec

ABOUT US

  1. We are a hub of lawyers, researchers, investigators, and assistants that help patrons understand their legal rights and strategies. We take an interdisciplinary, or hybrid approach to this work, one particularly suited to the aviation industry’s legal needs. We cast a wide net to generate a global view of problems. A global view implies understanding not only the present manifestation of a problem; it also requires knowledge about the problem’s origins. This approach is particularly suited to addressing complex negotiations, transactions, and litigation. Our familiarity with aviation regulations, corporate law, and commercial transactions allows us to assist members of the aviation industry.

Adam Strömbergsson-DeNora MA, JD

  1. Adam owns and flies an Ercoupe. He enjoys pouring over Canadian aviation regulations, and, when he isn’t flying or thinking of flying, likes to work with members of the aviation industry on policy and legal issues.
  2. Adam practices as an instructing solicitor: he prepares and coordinates litigation. He is a procedural nut familiar with judicial and parliamentary procedure, which allows him to assist clients through court proceedings and parliamentary processes. Adam also serves as A.P.Strom and Associates’ coordinating lawyer–he manages the day-to-day activities of the lawyers and staff working on files.
  3. Adam draws from his research background and voluminous knowledge of Canadian law. His specialty is organizing complex litigation, such as civil trials involving claims of real property, contract, or fraud / misrepresentation. He is also experienced with administrative law matters and works on constitutional challenges. He also draws on his background in English literature to advise clients about drafting and interpreting legal instruments.

Dr. Rebecca Jaremko PhD, LLM, MBA, LLB

  1. Rebecca works as a barrister and solicitor. She has enjoyed a varied career in law, business, and academia, spanning over 20 years. Her work as a lawyer began in 2003 with civil litigation with a large firm, and she has returned to litigation in this role.
  2. Rebecca’s experience includes working as Staff Lawyer, Law Reform and Equality, at the Canadian Bar Association, then as a Policy Counsel with the Federation of Law Societies of Canada. Subsequently, Rebecca served as a per diem Crown Attorney with the Ministry of the Attorney General in Ottawa. She then shifted gears and joined the management team of Gowling WLG, serving as Equity, Diversity, and Inclusion Manager for a large, multinational law firm.
  3. Rebecca is a member of the Ontario Bar Association Council.

Download the report in PDF.

A.P.Strom and Associates has issued a claim against Transport Canada on behalf of Mr. Shaun Curtis Davis, a helicopter pilot with some 9,000 hours of flying time.

Mr. Davis was accused of suffering from Alcohol Use Disorder–alcoholism–that rendered him unable to safely pilot helicopters or fixed-wing aircraft. He has been without a Canadian medical certification since 2016. Mr. Davis provided evidence sufficient to disprove the accusation that he was an alcoholic in early 2017. Transport Canada’s department of civil aviation medicine, however, ignored the evidence that Mr. Davis presented. The regulator continues to deny Mr. Davis a medical certification.

The Transportation Appeal Tribunal of Canada reviewed Mr. Davis’s case. It found that Mr. Davis had never been an alcoholic and said that

There has been an abject failure on the part of CAM and the AMRB to objectively consider the evidence and change their opinion accordingly as the facts changed.

2022 TATCE 67, para. 87.

The TATC remitted the matter to the Minister for reconsideration, as it is required to do under the Aeronautics Act.

Mr. Davis claims in negligence and misfeasance in public office for the disastrous consequences of Transport Canada’s decision on his career.

Mr. Davis further claims Charter remedies for adverse effect discrimination. He claims that Transport Canada’s policies and the implementation of those policies are discriminatory. He further claims that the TATC’s appeal and review process for medicals is flawed because it perpetuates discriminatory conduct. By forcing the TATC to remit matters to the Minister for reconsideration, applicants for medical certification are again subjected to the discriminatory processes and standards established by Transport Canada.

Read the full statement of claim

Statement-of-Claim-Davis-21-Jun-2023Download

JUNE 2023

When are expanded air passenger rights perhaps the wrong approach?

REBECCA JAREMKO BROMWICH

A significantly bolstered regime for air passenger rights in Canada may sound like a good idea, but it’s perhaps not such a great suggestion when Canadians want to fly anywhere.

Tabled in Canada’s federal Budget Implementation Act in March 2023, Canada’s government is touting a new legislative proposal; Bill C-47 includes a mechanism to make its air passenger rights regime “the toughest in the world”. Among other things, this new legislative proposal will produce a tenfold increase to the fines against airlines for passenger rights breaches.

An expanded regime of rights for air passengers, at first blush, sounds like a great idea. However, there are several reasons why it may be problematic to accord airline passengers stronger rights and remedies against airlines:

Costs: Air travel within Canada is already massively expensive. In fact, domestic flights within Canada constitute some of the most expensive air travel in the world. A bolstered passenger rights regime presents increased costs to airlines: If airlines are required to provide passengers with an ever-expanding range of rights, such as compensation for delays or cancellations, it will significantly increase the cost of doing business, thus imposing operational and cost burdens that may be insurmountable. This imposition is likely to result in even higher ticket prices for consumers or loss of choice in the marketplace if airlines are unable to absorb the costs.

Disruptions to airline schedules: Post-Covid, Canadian airlines have made “meaningful reductions” to flight schedules. Bill C-47 increases the capacity for passengers’ rights to demand compensation or other remedies for flight delays or cancellations. While these rights sound beneficial to passengers, they can also lead to disruptions in airline schedules. The new passenger protection scheme incentivizes airlines to cancel flights proactively rather than risk the possibility of having to provide compensation to passengers.

Increased legal disputes: A wider range of rights against airlines and bigger sums in compensation are a combination likely to lead to an increase in legal disputes. Interestingly, while it might seem like lawyers would gain from increased litigation of passenger rights disputes. the Canadian Bar Association, comprised of 37,000 of Canadian lawyers, opposed the introduction of Canada’s initial air passenger rights legislation in 2009. Litigation can be expensive and time-consuming for passengers and airlines, which taxes an already stressed legal system.

In sum, while protecting air passengers’ rights is a laudable goal, Bill C-47’s expansion of passenger rights may have negative consequences for airlines and, ultimately, for Canadian consumers. It’s important to strike a balance between protecting passenger rights and ensuring that airlines can operate in a sustainable and efficient manner, especially if Canadians ever want to fly anywhere.


A note about process

ADAM P. STRÖMBERGSSON-DENORA

Air Passenger Rights and Professor Paul Daly noted up concerns with bill C-47 that undermine the fairness of administrative proceedings at the Canadian Transportation Agency. These concerns are presented below. The thrust of these concerns is that CTA proceedings will become inaccessible to the public and that the CTA will have the ability to make regulations through guidelines to decision-making officials known as Dispute Resolution Officers. In both cases, the worry is that the Canadian Transportation Agency’s powers are increasing to the detriment of passengers’ and the industry’s ability to publicly engage with protection standards. These concerns are important, and Doctors Lukacs and Daly do a fine job addressing them in their parliamentary briefs. They pale, however, in comparison to the manner in which these updates to air passenger protections were enacted. 

Omnibus legislation has been used to pass controversial measures, typically as part of a budget implementation bill. In so doing, however, the government (the inevitable sponsor for legislation that implements a budget) gives Parliament short shrift. The Standing Senate Committee on National Finance made its pre-occupation clear in its report on the bill

The Committee expresses its concern about the continued use of Omnibus Bills. Bill C-47 is 430 pages long and includes many sections that are unrelated to the fiscal policy of the Government, such as the amendments to the Criminal Code and the Canada Elections Act. They should have been introduced as separate Bills. This practice is unacceptable.

The Committee is also concerned that insufficient time was provided to the Senate to thoroughly study the Bill, and to determine its impact.

Part of Parliament’s review of legislation involves soliciting and reviewing stakeholder opinions. In the instant case, as with many omnibus bills, Parliament has not been given the ability to properly review the changes to the air passenger protections scheme. The significant errors pointed up in the amendments suggest that special interest groups may challenge these amendments through the courts. 

Regulatory changes that affect the aviation industry are often slow affairs that begin with international consultations. Air passenger protections are, however, idiosyncratic in that they only apply to carriers operating within Canada at some point along a passenger’s route. They must nevertheless be reviewed for international implications, not least of which is the potential impact that enhanced protections may have on small-to-medium or budding carriers. 

Saddling the industry and Parliament with amendments buried in an omnibus bill that must pass in order for the government to retain the confidence of the House of Commons is not good governance. It is efficient government, which uses legislation as a blunt instrument. 

The resulting amendments have, in this case, resulted in only a few dissatisfied voices submitting their concerns to Parliament. More, however, may come as the industry wakes to the Canadian Transportation Agency’s increased regulatory powers. 

More to the point: there will come a time when the aviation industry may have to politely yet publicly break from an increasingly efficient government. Legislative and regulatory measures take time because they garner public and internal input. Hence Dr. Lukac’s concern with Bill C-47 allowing the CTA to interpret law for the benefit of its dispute resolution officers. These interpretations come awfully close to regulations themselves. An overly definite interpretation may cross the line, but Parliament quickly passed an amendment that exempts the CTA’s interpretations from the regulatory implementation process. 

Similar moves have been made in other parts of the aviation industry. NAV Canada’s ADS-B mandate, for example, is sponsored by the Minister of Transport but rammed through using incorporation by reference. Incorporation by reference circumvents the regulatory implementation process. Parliament placed limits on the practice: reference documents can only define concepts and technical matters that are incidental to the existing rules. The ADS-B mandate, however, overhauls the regulatory definition of a transponder to include new equipment without changing the regulations. 

This point may seem trifling to most, especially commercial operators for whom ADS systems are already mandatory. A government’s failure to abide by its own processes signals increasingly large regulatory hurdles being cleared in comparatively less time. This pace of change will start costing money–money (again) that small-to-medium-sized operators may ill-afford.  The government will need to set efficiency aside in order to maintain a thriving aviation industry in the world’s second largest country by landmass.

Caselaw

April 19, 2023–R v Sailer–2023 ABCJ 90

MASKING REQUIREMENT–On July 20, 2021, Mr. Sailer was pax. who refused to comply with cabin crew’s directive to wear a mask. A man in the seat behind Sailer had a seizure mid-flight, which increased Sailer’s anxiety. Sailer suffered from diagnosed anxiety and asthma. Sailer grew short of breath, so removed his mask. Sailer was charged with failing to comply with cabin crew’s instructions. Dr. Tyler Duncan Poth Brooks, director of Civil Aviation Medicine, gave expert testimony for the Crown. The Crown proved the offence, but the Court accepted Sailer’s defence of due diligence. He removed the mask because he felt that he was and indeed was in some danger. 

June 1, 2023–Roy v Gander Flight Training–2023 CanLII 52009 (NL HRC)

JURISDICTION–Does a provincial human rights statute apply to the relationship between a flight school and a student pilot?–Flight school brought motion to dismiss for want of jurisdiction–motion granted–provincial tribunal did not have jurisdiction to adjudicate a dispute regarding flight training–flight training “at the core of the federal competency in aeronautics”–two-part test to determine jurisdiction: (1) are the parties subject to federal regulation of the activity underlying the human rights complaint? ; (2) is the federal regulation impaired by the application of provincial regulation?–flight training is regulated by the Canadian Aviation Regulations and the regulations exist to ensure public safety–provincial regulation exists with respect to the educational aspects of a flight training school–the federal regulations ensure public safety–flight training protects the public–the federal regulator must play a part in a human rights decision that affects its core competence over aeronautics.

June 12, 2023–Lowey v. Air Canada–2023 BCCRT 490

MOTION TO STAY–Pax. brought small claim to BC Civil Resolution Tribunal for $2,855.00–pax. self-represented–carrier brought motion to indefinitely stay proceedings because class action claims were filed in BC and QC–classes not yet certified–ongoing Federal Court of Appeal proceeding (docket no. A-267-22) may also have bearing on the Tribunal’s decision–Tribunal rejected motion–the carrier’s reasons for requesting an indefinite stay were speculative–BC class actions were opt-out; pax. had effectively opted out by filing a small claim–Federal Court of Appeal deliberations and decision were not on the substance of dispute, but on motion for leave–carrier did not provide compelling reason for stay.

CTA Decisions

June 5, 2023–Sylvie Papineau against Société Tunisienne de l’Air (Tunisair)–Decision No. 89-C-A-2023

REASON FOR DELAY–Pax. scheduled return flight from Montréal to Lyon, France, via Tunis, departing on December 20, 2019. The outbound flight was delayed for approximately six hours, which caused pax. to miss connecting flight in Tunis. Carrier did not file a response. Pax. submitted that carrier did not provide cogent reasons for delay. CTA applied decision no. 122-C-A-2021; found that carrier had not complied with APPRs; awarded $700 damages. Pax. complaint that carrier had fallen below APPR standard of treatment unfounded.

June 5, 2023–Mark Hamilton, Justine Hamilton and their minor children against Air Canada–Decision No. 90-C-A-2023

EVIDENCE–Pax. scheduled flight from Vancouver to Cancun, departing on January 5, 2020. The departure was delayed twice and then cancelled, which led to a late arrival of approximately twenty-four hours. Pax. claimed damages under the APPRs for inconvenience, general damages, and lost vacation time. The CTA found that the subject aircraft was grounded for maintenance. The maintenance problem had to do with the aircraft’s weather radar. The carrier argued that the problem was not in its control. It did not, however, provide sufficient evidence to prove that the equipment malfunctioned during the aircraft’s turnaround in Vancouver. The CTA awarded $1,000.00 to each pax. in damages. The carrier was required to inform each pax. scheduled on the cancelled flight who submitted a claim of the agency’s decision and reconsider any denied claims in light of the decision.

June 9, 2023–Josiane Lord against ABC Aerolineas, S.A. de C.V. (Interjet)–Decision No. 92-C-A-2023

FARE REFUND–Pax. scheduled return flight from Montréal to Lime, Peru, via Mexico City, departing June 5, 2020, returning June 17, 2020. Carrier cancelled flight and provided only travel credit; no refund. Pax. complained to CTA. Carrier had not filed a tariff with the CTA prior to commencing operations. Carrier did not file a response to the application; Agency found for the pax; declared the cancellation within the carrier’s control, and required a full refund.

June 13, 2023–Louise Nadeau, Caroline Bordeleau, Édith Campbell, Jennifer Gohier, José Paquin, Martine Couture and Nathalie Labelle against ABC Aerolineas, S.A. de C.V. (Interjet)–Decision No. 98-C-A-2023

FARE REFUND–Pax. scheduled return flights from Montréal to Mexico, departing on June 27, 2020, returning in early July. Pax. sought refunds for the price of their tickets. The carrier did not submit a response to the pax. applications. The carrier’s tariff required it to provide a refund if it cancelled a flight for reasons within its control. Absent submissions from the carrier, the CTA ruled that the carrier admitted the allegations. The CTA ordered refunds totaling $3,082.00.

June 23, 2023–Autumn Evoy, Erin Maxwell, Hunter Troup, Lara Plokhaar, Kandi Smiley, Edwina Brooks against Air Canada, WestJet, Air Transat, K.L.M. Royal Dutch Airlines (KLM) and VIA Rail Canada Inc. (VIA)–Decision No. 105-AT-C-A-2023

CARRIAGE OF EMOTIONAL SUPPORT ANIMALS–Pax. (including rail pax.) claimed that they were denied the ability to travel with an emotional support animal. Five air pax. were traveling with dogs; one rail pax. traveled with a rabbit. After receiving submissions, the CTA determined that unrestricted carraige of emotional support animals would cause carriers undue hardship. Certain species of emotional support dogs, however, could be carried with pax. in the cabin under appropriate conditions. Pax. must provide proof that they suffer from a mental health disability and require an emotional support dog. A veterinary’s certificate must also attest to the animal’s good health. Such documentation should be provided to the carrier at least ninety-six hours from the departure time. If not provided within that time, the carrier remains bound to make every reasonable effort to transport the pax. with their emotional support dog. The dog must fit comfortably within a carrier at the pax. seat or under the seat. The pax. must comply with any international requirements for the transport of animals. Any accommodation for the transportation of emotional support dogs must be free of charge. The carrier may refuse to further transport the animal if it poses a risk to the safe operation of the transport or if the dog is removed from the carrier.

Cases before the courts

June 21, 2023–Davis v Canada (Attorney General), ONSC docket CV-23-92467 (Ottawa)

AVIATION MEDICAL CERTIFICATION–Statement of claim issued against the Attorney General for negligence; against defendant doctor for negligence and misfeasance in public office–Minister of Transport, through defendant doctor, found plaintiff to suffer from substance abuse disorder (alcohol)–no evidence suggested that such a disorder existed or that treatment was warranted–plaintiff, a pilot, had aviation medical certification revoked in 2016–despite submitting evidence of no substance abuse and complying with TC mandatory treatment, Minister and defendant doctor persisted in denying medical certification–plaintiff lost currency and unable to be employed–claim for damages–Charter of Rights and Freedoms violations–TATC found in favour of plaintiff on review–TATC unable to overturn Minister’s decision–matter remitted to Minister–Charter challenge against TATC’s limited jurisdiction to provide relief in clear cases of Minister’s error.

June 22, 2023–Brosseau Estate v Dubarry Estate, 2023 ABKB 378

COSTS–Aircraft, a Cirrus SR22, suffered fatal accident (Springbank, Sept. 24, 2010) during pre-purchase test flight–pilot and pax. killed–pax. estates brought action against pilot’s estate, insurance broker, underwriter, and aircraft insurer–the broker and underwriter were released from the action (2022 ABQB 60)–action continues against defendant estate and insurer.

Legislative updates

An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023

Royal assent: June 22, 2023

Bill C-47, now enacted as Statutes of Canada, 2023, chapter 26, is omnibus legislation. Sections 436-473 amend the Canada Transportation Act to strengthen the Canadian Transportation Agency’s ability to protect air passenger rights. The legislation notably allows the government to require air carriers to publish information respecting their performance on their Internet site; permits the sharing of information to ensure the proper functioning of the national transportation system or to increase its efficiency; broadens the scope of the administrative monetary penalties scheme; broadens the Canadian Transportation Agency’s authority to set fees and charges to recover its costs; replaces the current process for resolving air travel complaints with a more streamlined process designed to result in more timely decisions; imposes a greater burden of proof on air carriers whereby it is presumed that compensation is payable to a complainant unless the air carrier proves the contrary;and requires air carriers to establish an internal process for dealing with air travel claims. The Act also strengthens the Canadian Transportation Agency’s ability to enforce air passenger protections.

Air Passenger Rights was the only organization to submit a brief to parliamentary committees regarding modifications to the air passenger protection scheme. The organization noted that CTA proceedings would be less accessible. It further took issue with Parliament’s decision to remove the statory right of appeal, which leaves passengers and airlines alike with a more murky judicial review process if they disagree with a CTA decision. The organization also disputed the CTA’s new ability to issue guidelines that are exempt from the Statutory Instruments Act. It framed such an exemption as a Henry VIII clause that granted the agency unchecked power to create new law through policy instruments. 

Professor Paul Daly submitted a short brief to the Senate Committee on Transportation and Communication that buttressed Air Passenger Rights’ position.

Civil aviation consultations

Civil aviation medicine–program modernization

Transport Canada is in the midst of undergoing program modernization, including the medical certification process. One area TC is looking into is to improve the service delivery and minimize the duration of medically necessary suspensions. TC is therefore seeking ideas and comments as to how the aviation medical evaluation processes can better accommodate individuals with health conditions to try and avoid situations where their medical certificates are suspended under the Canadian Aviation Regulations.

If you would like to contribute any input, ideas, comments, or questions on this matter, please send an email to CivAvCAMModernization-modernisationMACAvCiv@tc.gc.ca before September 1, 2023. Please note this address has been set up specifically for queries related to this matter and cannot be used as a forum to discuss individual cases. Furthermore, no confidential information should be sent to this address, which will only be open for the duration of this project. 

Modernizing the Canadian Aviation Regulations: General Aviation

Amendments and proposed amendments

Treaties and international instruments

ANAC/TCCA Implementation Procedures for Airworthiness

on June 12, 2023, Transport Canada Civil Aviation (TCCA) and the National Civil Aviation Agency of Brazil (ANAC) signed their formal bilateral Implementation Procedures for Airworthiness (IPA). The IPA covers bilateral procedures for conducting initial design and post-design approval activities, cooperation on continuing airworthiness, and provisions for technical assistance.

 The IPA will enter into force on September 10, 2023.

 ANAC/TCCA bilateral procedures feature the following provisions, subject to the conditions specified in the IPA:

TSB Reports

Contact us

Website: apstrom.ca

E-mail: info@apstrom.ca

Telephone: +1 (514) 865 6002

About us

We are a hub of lawyers, researchers, investigators, and assistants that help patrons understand their legal rights and strategies. We take an interdisciplinary, or hybrid approach to this work, one particularly suited to the aviation industry’s legal needs. We cast a wide net to generate a global view of problems. A global view implies understanding not only the present manifestation of a problem; it also requires knowledge about the problem’s origins. This approach is particularly suited to addressing complex negotiations, transactions, and litigation. Our familiarity with aviation regulations, corporate law, and commercial transactions allows us to assist members of the aviation industry.

Adam P. Strömbergsson-DeNora MA, JD

Adam owns and flies an Ercoupe. He enjoys pouring over Canadian aviation regulations, and, when he isn’t flying or thinking of flying, likes to work with members of the aviation industry on policy and legal issues.

Adam practices as an instructing solicitor: he prepares and coordinates litigation. He is a procedural nut familiar with judicial and parliamentary procedure, which allows him to assist clients through court proceedings and parliamentary processes. Adam also serves as A.P.Strom and Associates’ coordinating lawyer–he manages the day-to-day activities of the lawyers and staff working on files.

Adam draws from his research background and voluminous knowledge of Canadian law. His specialty is organizing complex litigation, such as civil trials involving claims of real property, contract, or fraud / misrepresentation. He is also experienced with administrative law matters and works on constitutional challenges. He also draws on his background in English literature to advise clients about drafting and interpreting legal instruments.

Dr. Rebecca Jaremko PhD, LLM, MBA, LLB

Rebecca works as a barrister and solicitor. She has enjoyed a varied career in law, business, and academia, spanning over 20 years. Her work as a lawyer began in 2003 with civil litigation with a large firm, and she has returned to litigation in this role.

Rebecca’s experience includes working as Staff Lawyer, Law Reform and Equality, at the Canadian Bar Association, then as a Policy Counsel with the Federation of Law Societies of Canada. Subsequently, Rebecca served as a per diem Crown Attorney with the Ministry of the Attorney General in Ottawa. She then shifted gears and joined the management team of Gowling WLG, serving as Equity, Diversity, and Inclusion Manager for a large, multinational law firm.

Rebecca is a member of the Ontario Bar Association Council.

Download the report in PDF

This note is the first of two that outline the interplay between air operators’ passenger tariffs and Transport Canada’s requirement to remove unruly or unsafe passengers from aircraft. The notes are inspired by Zoghbi v. Air Canada, a case in which the Montreal Convention was put up to preclude a human rights claim for invoking Transport Canada’s requirement. The regulation regarding unruly passengers, though broad, subjects operators to heightened administrative and judicial scrutiny for human rights abuses. Operators’ private regulations are subject to ministerial scrutiny, thus making them impeachable beyond simple damages, which may be precluded by the Montreal Convention

The notes together suggest a broader approach for Zoghbi and similar cases in which human rights issues arise in connection with passenger air transport before Canadian tribunals and courts. Mr. Zoghbi raised a constitutional challenge to the Convention’s seemingly broad application: it prevents claims for damages arising under human rights legislation, thus (so he argued) violating section 15 of the Charter. The Court did not deal with this challenge; and the challenge is an ultimate effort. This note sketches out another argument that relies on the Convention’s text to open airlines to the full range of claims under the Canadian Human Rights Act.

Where a man has but one remedy to come at his right, if he loses that he loses his right.

Lord Holt, Ashby v White [1703] 2 Ld. Raym. 938, p. 954.

This note discusses preclusion of actions under the Montreal Convention. A close reading of the Convention shows that intentionally negligent or reckless acts by airline staff are not protected by the Convention. This reading is no artful pleading: this international agreement limits itself to protecting airlines from overwhelming costs in the wake of an accident. Its objective does not include insulating airlines from civil liability in all circumstances. Airline employees who abuse their positions of authority–which is the subject of the second note in this series–are open to suits under the Convention.

The case

Zoghbi v. Air Canada is a continuing case remitted by the Federal Court to the Canadian Human Rights Commission. The decision reported at 2021 FC 1154 deals with the threshold issue of the Montreal Convention’s application. The Court ruled that the Montreal Convention did not preclude the Canadian Human Rights Tribunal’s jurisdiction, which goes beyond a simple award of damages. Justice Fothergill limited his analysis to the judicial review before him. He rightly noted that the Montreal Convention does not obviously preclude a human rights claim against an operator. The substantive issue, the human rights claim against Air Canada, remains pending the Commission’s decision.

Mr. Zoghbi was removed from an aircraft on the ramp at Halifax airport after he asked to speak to a manager about a flight attendant’s conduct. Air Canada subsequently banned him from flying with the carrier because an employee reported him as having been verbally abusive toward staff. Mr. Zoghbi filed a complaint of discrimination on the basis of race, national or ethnic origin, colour, and/or religion with the Canadian Human Rights Commission. 

The complaint never got off the ground because the Commission dismissed Mr. Zoghbi’s case as ‘trivial’. The Commission found that the Canadian Human Rights Tribunal could not make a financial award nor could it order Air Canada to apologize for its employees’ conduct. The Montreal Convention, which is implemented by schedule 6 of the Carriage by Air Act, precluded Air Canada from liability other than the value of Mr. Zoghbi’s ticket. The Federal Court reversed the Commission’s conclusion:

The Commission assumed that the possible unavailability of financial compensation for breaches of human rights in the context of international air travel was a bar to all meaningful remedies. The Commission failed to consider whether other remedies, such as measures to redress the alleged discriminatory practice or prevent similar practices from occurring in future, might be appropriate. Its decision to dismiss Mr. Zoghbi’s complaint as trivial was therefore unreasonable. (Para. 52)

The matter now goes back to the Commission, and Mr. Zoghbi has raised a constitutional question regarding the Montreal Convention’s bar to awards of human rights damages. Justice Fothergill declined to rule on this question because the issue had not been sufficiently argued, nor had it accounted for evidence.

The problem with the Montreal Convention

The constitutional question that Mr. Zoghbi raised before the Federal Court questions the Montreal Convention’s very wide net, which has been characterized as an ‘entire liability scheme’.[1] That scheme is detailed in articles 29 and 17 of the Convention; it only applies to damages that arise out of an accident. That wisdom may be disputed without reference to the Charter. The Convention may not apply to intentional discrimination by airline employees: an act designed to discriminate is reckless in Canadian law. The Convention, as Justice Fothergill points up, does not prohibit non-pecuniary remedies. 

The typical argument that shields an airline from liability frames the Convention as an international order designed to ensure uniformity of liability.[2] Articles 29[3] and 17[4] combine to preclude ‘any action for damages, however founded’ from being brought when ‘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’. These provisions do not explicitly cover human rights claims (Zoghbi, para. 52), nor do they necessarily cover claims not related to an accident.[5]

Limiting human rights abuses at Canadian law

The Montreal Convention and its predecessor treaty use sweeping language that courts rarely disturb. Courts and administrative tribunals may be able to limiting the worst abuses by distinguishing between normal conduct in the course of an airline’s business and conduct that takes an employee outside of her or his regular employment. A claim for damages can result against an airline’s employees if they intentionally harm a passenger or are intentionally negligent. This rule arises through article 30 of the Convention. Article 30 finds application because human rights abuses break into two categories: intentional and unintentional discrimination.[6] The Canadian Human Rights Act stipulates additional penalties for willful or reckless discrimination,[7] thus harmonizing with article 30 of the Convention.[8] 

Paragraphs one and two of article 30[9] extend the Convention’s limits to damages caused by airline employees in the course of their duties.[10] Paragraph 3,[11] however, opens airline employees to liability if they behave recklessly with knowledge that damage would likely result. The scant commentary on this section snubs the Convention’s application to airline employees or agents:

These provisions extend the protection afforded to the carrier to servants and agents, which may not be substantial enough to be ‘‘worth powder and shot’’ by claimants. To allow claimants to recover from agents what the regime does not allow them to recover from carriers would subvert the regime.

Contracts of Carriage by Air

The practical analysis of potential claims against airline employees adds little to the argument that employees cannot be responsible under the Convention. Recovery may be limited, but the treaty’s text is clear enough that the regime does not apply to employees who intend to cause damage or who behave recklessly. If the regime does not apply, any damage may be claimed against an employee (thus circumventing the need to find bodily harm under article 17).[12]

Conduct that makes an employee liable must be a combination of intent to damage or recklessness and knowing that damage will result.[13] An airline employee becomes liable to the exclusion of her or his employer when a plaintiff proves mens rea.[14] That high bar has not been considered in relation to the Montreal Convention; the Warsaw Convention’s language is similar enough to ground interpretations of the intention required, or the recklessness needed, to open an employee to liability. 

An intent to harm is straightforward, for the mens rea required to prove intent must be based on unequivocal evidence. That evidence is unlikely to obtain in a safety sensitive culture like aviation’s.

Recklessness requires a negligent attitude that disregards a very real potential for harm. The English Court of Appeal defined the term in Goldman v Thai Airways International Ltd.:

When conduct is stigmatised as reckless, it is because it engenders the risk of undesirable consequences. When a person acts recklessly he acts in a manner which indicates a decision to run the risk or a mental attitude of indifference to its existence.

[1983] 3 All ER 693, p. 699.

Stigma and risk are the foci of this definition. Conduct that is stigmatized is not simply forbidden: such conduct is openly denounced. It is possessed of infamy. The risk associated with such conduct is in part the reason for stigmatization, so the two run together in the Court’s definition. Ignoring or being ignorant of the stigma rises to the level of reckless conduct. Such ignorance–apparently in conflict with the meaning of stigma–was to be appreciated by the Court in terms of the employee’s or airline’s knowledge during the incident.[15] American courts, however, blend the standards while observing that a fact finder may infer that the risk of harm was so obvious that the defendant could not have but known of the risk.[16]

The Canadian Human Rights Act prohibits discrimination because the conduct, at this point in Liberal rhetoric, is stigmatized. Whether a miserly employee agrees with those prohibitions, it beggars belief that even such an employee would not be aware of the stigma. The prohibition bleeds through a subjective standard that assesses an employee’s awareness of the prohibition and the risk of harm during the incident. Those harms are weekly featured in media; their effects receive academic and popular attention. 

Each case, of course, requires special focus on an employee’s intent, which invokes the distinction between direct and indirect, intentional or unwitting, discrimination. Under the Montreal Convention, unwitting discrimination likely doesn’t rise to a level that engages article 30, paragraph 3, of the Convention. An employee’s unintentional discrimination falls under the Convention’s protection because the employee’s mistake occurred in the course of her or his employment. Only intentional discrimination fits the Convetion’s exception. These cases are likely handled through administrative processes, which may include those established by the Canadian Human Rights Act.[17]

Law does not present a clear solution

Canadian law is one system in which domestic human rights commitments conflict with the Montreal Convention. Judges give such weight to the Convention that, though it is incorporated in Canadian law (and thus putatively on a level field with the Canadian Human Rights Act), Canada’s judge-made law doesn’t seem like a useful forum. The Convention’s application is a political matter suited for parliamentary debate and executive intervention.

Zoghbi brings this tension between the Montreal Convention and Canadian human rights law into view. At the beginning of a century in which air (and space) travel will continue to proliferate, this cleavage merits legal and political scrutiny. Insulating airlines from all claims is efficient; it flies in the face of national and international commitments into which Canada and many other states affiliated with the International Civil Aviation Organization have entered.


Notes

[1] Malcolm A. Clarke, Contracts of Carriage by Air, 2nd ed., (London: Lloyd’s List, 2010), p. 161.

[2] Thibodeau v. Air Canada, 2014 SCC 67, paras. 14, 75.

[3] 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.

[4] 17.1. The carrier is liable for damage sustained in case of death or bodily injury of a 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.

[5] See the US Second Circuit Court of Appeals decision in Tsui Yuan Tseng v. El Al Israel Airlines, Ltd., 122 F.3d 99 (2d Cir. 1997), pp. 104-5, but reversed in El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 119 S. Ct. 662 (1999), p. 176.

[6] See McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, para. 48, where the Supreme Court condensed the definition of discrimination: ‘The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.’

[7] RSC 1985, c H-6, s. 53(3): In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.

[8] Butler v Aeromexico, [1985] 774 F2d 429: In the case at bar the District Court’s primary reliance was upon the judicial interpretation of the Convention’s primary term “wilful misconduct,” but as a second string to its bow was pointing out that if it were needful to resort to local law, the Alabama concept of “wantonness” was substantially equivalent to the Convention’s primary standard and would support the decision reached by the court. We see no harm to appellant or harmful error (if there be any discrepancy at all in the international standard and the Alabama standard) in the District Court’s discussion of this comparison.

[9] 1. If an action is brought against a 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.
          2. The aggregate of the amounts recoverable from the carrier, its servants and agents, in that case, shall not exceed the said limits.

[10] A point made with little analysis in Walton v MyTravel Canada Holdings Inc., 2006 SKQB 231, at para. 32.

[11] 30.3. Save in respect of the carriage of cargo, the provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result.

[12] Note that the predecessor to the Montreal Convention (the Warsaw Convention of 1929) contained a provision that made carrier liable for acts or omissions borne from an intent to harm or from recklessness (art. 25: The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment). This provision no longer exists; only employees can be held liable–an iniquitous system in which corporations are safe from suit, yet employees are exposed to attack.

[13] International limitation of liability exists for maritime transportation, which is an older field than aviation. The terms in this field are better-defined and shed light on the Montreal Convention’s language. See: Norman A Martínez Gutiérrez,  Limitation of Liability for Maritime Claims, in The IMLI Manual on International Maritime Law, ed. David Joseph Attard and Malgosia Fitzmaurice, 1st ed. (Oxford: Oxford University Press, 2014), 551-75, pp. 564-5.

[14] Sub-section 126(1) of the Criminal Code of Canada requires a similarly high mens rea: ‘every person who, without lawful excuse, contravenes an Act of Parliament by intentionally doing anything that it forbids or by intentionally omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law,’ guilty of an offense.

[15] Ibidem, p. 703. Vide. Nugent v Michael Goss Aviation Ltd, [2000] All ER (D) 549, 2 Lloyd s Rep 222. American courts take a markedly different view that conforms to an objective analysis of a person’s knowledge: In re Air Crash Near Cali, Colombia on December 20, 1995, [1997] 985 F Supp 1106, pp. 1124-9. See in particular p. 1129: ‘Construing “reckless disregard” as tantamount to objective recklessness also makes sound practical and policy sense. If an airline’s employees are exposed to a plain, palpable and certain danger, and nevertheless intentionally perform acts that deviate substantially from the acknowledged standard of care, the absence of proof that they subjectively recognized the harm that likely would result from their conduct does not make them a great deal less culpable.’

[16] Piamba Cortes v American Airlines, Inc, [1999] 177 F3d 1272, p. 1291.

[17] Section 113.1 of the Air Transportation Regulations (SOR/88-58), when read alongside section 111 of those regulations, appears to provide a more effective means of relief for passengers affected by a breach of their human rights. The Canadian Transportation Agency is, however, not specialized in human rights law. A remedy under these regulations may not adequately respond to the human rights issues raised on the facts of a case. The Agency, however, may be a useful forum for complaints of unintentional discrimination.

Check out a.p.strom’s aviation law practise

This post has been updated after correspondence with Transport Canada regarding its aviation medicine certification regime. 21/06/21.

Transport Canada’s Civil Aviation Medicine (CAM) program has continued a discriminatory policy against subjects who present with mental health conditions that would not pose a danger to aviation safety. CAM has done so by misinterpreting and misapplying its enabling legislation. These faults amount to a breach of subjects’ right to equality; they also show that Transport Canada has not minimally impaired subjects’ rights or balanced the purported benefits of its discriminatory policy with the ill effects that subjects with mental health conditions suffer.

This note reviews the CAM program’s legislated standards and policy documents and considers them against the Australian example while applying Canadian human rights norms to show how the discrimination occurs.

Scitote

Aviation safety is, to be abundantly clear, a very legitimate purpose. That legitimacy, however, does not give doctors the ability to impose discriminatory and restrictive standards without an evidence-based rationale that substantially complies with aviation law and with Canadian human rights obligations.

Introduction

The current regime at Canadian Aviation Medicine has, as I have previously indicated, impinged upon subjects’ human rights when they disclose a history of mental health concerns during the medical certification process. After further reflexion, the problem appears to run deeper than previously indicated.

The short version is that Canadian Aviation Medicine aims to certify pilots as safe to fly. Their regulatory documents all indicate that any condition that renders a pilot unable to safely exercise the privileges of her or his license will be denied medical clearance. Canadian Aviation Medical Examiners (‘CAME’) and Regional Aviation Medical Officers (‘RAMO’) are bound to apply Transport Canada policy; that policy currently openly discriminates against mental health concerns by assuming that all mental health conditions render a person unfit to fly based on the prevailing standards.

As stated earlier, the Canadian Aviation Regulations Part IV, Standard 424.17 (4) specifies the physical and mental standards for medical categories. The standard related to mental issues is stated in 1.3 (a), 2.3(a), 3.3(a), 4.3(b):

“The applicant shall have no established medical history or clinical diagnosis which, according to accredited medical conclusion, would render the applicant unable to exercise safely the privileges of the permit, licence or rating applied for or held, as follows: (a) psychosis or established neurosis.”

At first glance this would render anyone with any history of depression, anxiety or other neurosis unfit to be licensed to fly. However, Transport Canada Civil Aviation Medicine has developed an approach to this issue that considers individual circumstances more intently.

Additionally, the use of medications for treatment of these disorders raises regulatory questions as stated in 1.1(d), 2.1(d), 3.1(d), 4.1(d):

“The applicant shall be free from (d) any effect or side effect of any prescribed or non-prescribed therapeutic medication taken, such as would entail a degree of functional incapacity which accredited medical conclusion indicates would interfere with the safe operation of an aircraft during the period of validity of the licence.”

Again, recognizing that the use of medications to treat mental issues is generally a positive step, but does complicate the considerations for medical certification TC CAM has established an approach that individualizes the decision making process.

Handbook for Civil Aviation Medical Examiners – TP 13312, emphasis added.

The discriminatory assumption is subtle, but present: the medical standard requires all medical evaluations to focus on whether the individual can safely operate an aircraft and exercise all of the privileges (and responsibilities) imposed on holders of aviation licenses. This requirement is immediately interpreted by Civil Aviation Medicine as ‘render[ing] anyone with any history of depression, anxiety or other neurosis unfit’. CAM is quick to downplay this statement by advertising its new policy, but its handbook elsewhere indicates that particular ‘psychiatric diseases’ presumptively render a person unfit. The subtle bias signaled by that ‘first glance’ remains, and CAM’s response to a presumptive determination is to immediately begin considering whether the person assumed to be unfit qualifies for an exemption pursuant to sub-section 404.05(1) of the Canadian Aviation Regulations:

(1) The Minister may, in accordance with the personnel licensing standards, issue a medical certificate to an applicant who does not meet the requirements referred to in subsection 404.04(1) where it is in the public interest and is not likely to affect aviation safety.

This exemption relies on a proper determination that an applicant is unable to safely pilot an aircraft or serve as an air traffic controller. Civil aviation medicine’s approach improperly determines this point because it operates on the assumption that all mental health conditions render a person unfit without any additional investigation.

This note shows how Canada’s Civil Aviation Medicine program is constitutionally deficient. Specific reference will be made to sections 15 and 24 of the Canadian Charter of Rights and Freedoms, which allows a court to review Transport Canada’s conduct. These sections read:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.)

These provisions come into play as a result of the government’s actions; its legislation (which would be controlled by section 52 of the Charter) is free from bias. This note concludes by calling for a new approach to aviation medical certification that treats subjects with the dignity that section 15 is meant to protect while ensuring aviation safety for all.

Canadian aviation medicine, discrimination, and its effects

Canadian aviation medicine operates under the Aeronautics Act, which is federal legislation that incorporates standards from the International Civil Aviation Organization (ICAO) into Canadian law. Its program is discriminatory not because the law makes it so; the doctors running the program instead make a host of assumptions about mental health that undermines the letter of the law (which may be a crime). The systematic effect of this discrimination perpetrates a violence on subjects that Hannah Arendt describes with brutal prescience:

In a fully developed bureaucracy there is nobody left with whom one can argue, to whom one can present grievances, on whom the pressures of power can be exerted. Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant.

On Violence (London: Allen Lane, 1970), p. 81

That initial assumption made within Transport Canada’s bureaucracy creates a hurdle over which subjects have significant problems jumping. The discrimination visited upon these subjects is thus twofold: it creates an immediate denial of the privilege to which they may be legally entitled; it also imposes a much more difficult set of bureaucratic processes to disprove the immediate denial.

This discrimination is typically justified with reference to aviation safety. This justification fails in the measure that its proponents cannot identify specific concerns that would preclude those with any mental health condition from flying. Chronic depression, for example, is treatable and, in some cases, results in no impairment that could affect aviation safety. So, too, is high anxiety. Ignorance is an unfortunate justification. It underscores the need for subjects to navigate the Transport Canada bureaucracy to receive equal treatment.

A common, more informed refrain used to justify Canadian aviation medicine’s biases is that ICAO imposes these standards. The Chicago Convention creates a worldwide set of standards for aviation, which includes medical standards for pilot and air traffic controller (ATC) certification. This shibboleth is quickly disproven by looking to the international context in which Canada’s medical standards exist.

Effect of discrimination

Prior to considering these standards, the effects of Canada’s discriminatory system ought to be fleshed out.

The initial assumption

A medical examination system that begins with an instruction to discriminate is, at first glance, a deeply biased system. The onus (as I have elsewhere shown) rests on individual applicants not only to convince doctors to shake their biases, but also to convince the Government of Canada to change its policy. This is a heavy charge for which most individuals are ill-equipped and under-resourced.

Bias against mental health conditions creates a violation of the Canadian Charter because section 15 requires Transport Canada to apply the law equally to those people who disclose mental health disabilities. The Supreme Court thus said that: ‘The essence of stereotyping … lies in making distinctions against an individual on the basis of personal characteristics attributed to that person not on the basis of his or her true situation, but on the basis of association with a group’ (Winko, para. 87). Canadian Civil Aviation Medicine includes this stereotype in its Handbook for Civil Aviation Medical Examiners. All mental health conditions are presumed to be disqualifying without reference to individual cases.

Transport Canada only takes a case-by-case approach to grant exemptions from the strict medical standards. The burden and cost of obtaining these exemptions falls on individual applicants, pilots, or air traffic controllers.

The Canadian Aviation Regulations, however, which incorporate Standard 424 relating to medical certification, require an individualized process that specifically exempts stereotyping:

The applicant shall have no established medical history or clinical diagnosis which, according to accredited medical conclusion, would render the applicant unable to exercise safely the privileges of the permit, licence or rating applied for or held, as follows: 

(a) psychosis or established neurosis;
(b) alcohol or chemical dependence or abuse;
(c) a personality or behaviour disorder that has resulted in the commission of an overt act;
(d) other significant mental abnormality.

Physical and Mental Requirement, amended 2007/12/30, emphasis added.

The required examination must assess whether any of the listed conditions would, in the applicant’s individual circumstances, create a safety hazard.

Standard 424 also indicates that a CAME must grant the highest medical certification possible based on the evidence before them: ‘An applicant shall be granted the highest assessment possible on the basis of the finding recorded during the medical examination.’

Based on these provisions, that Standard is not only constitutionally acceptable. It is an exemplar of the individualized process required by Canadian constitutional law.

The implementation of this policy, however, leaves much to be desired. The Handbook for Civil Aviation Medical Examiners contains these standards:

The presumption could not be clearer: all anxiety- or depression-related conditions are disqualifying. Pilots are not fit to fly if these conditions are present. The individualized consideration given to applicants appears to fall under section 404.05 of the CARs, which is invoked only when a person is found to be unfit. This added burden creates a disadvantage for applicants with mental health conditions. Transport Canada resists this interpretation, but the use of the words ‘may be considered for medical certification’ after a paragraph that declares depression a disqualifying condition indicates that the disqualification has occurred.

These instructions violate Standard 424 because they do not engage in the required assessment for fitness to fly before implementing the Minister of Transport’s ability to license with conditions.

Pilots and ATC presenting with mental health conditions thus do not benefit from an even application of Standard 424. This discriminatory treatment disadvantages pilots with minor mental health conditions, like dysthymia or some anxiety disorders. These conditions may persist throughout a person’s life and not interfere with her or his aviation duties. They may also be treated with maintenance therapies.

These options are only acknowledged as grounds for exempting a person from medical standards, which means that a professional pilot or ATC may face an indefinite license suspension if she or he discloses a mental health condition. An indefinite suspension is, for most pilots, detrimental to their careers, yet Civil Aviation Medicine does not seem responsive to these grave risks.

Private pilots investing time and money in their hobby are, of course, less affected by these strictures. Their interest is typically more personal. A discriminatory decision from Civil Aviation Medicine will only affect property interests in aircraft or the like.

Either way, though, discrimination hits hard. Research shows that the stigma of perceived discrimination can negatively impact a person’s mental health. An applicant’s pre-existing condition may thus be worsened by Civil Aviation Medicine’s behaviour, which result stands at odds with CAM’s mission and doctors’ ethics.

The violence of bureaucracy

Discrimination is bad enough. Systematic discrimination, for most, is insurmountable due to the sheer size of government bureaucracy. Once this part of the story gets added to the mix, the violence visited upon individuals who disclose that they have a mental health condition becomes acute. The government stands as a representation for wider social stigma, which can be perceived as reflecting Canadian society and/or as reflecting the Canadian aviation community. Either way, stigma that is reinforced by government magnifies the deleterious effects of discrimination on applicants’ mental health.

The wider issue, in bureaucratic terms, is that pre-existing institutional bias that must be reversed by individual applicants creates an institutional culture that prides itself on maintaining bias. Doctors are far from immune to this impulse, specifically as it concerns mental health.

Canadian Civil Aviation Medicine is demonstrative of these ills. The authority accompanies its discriminatory language with discriminatory requirements. CAM automatically imposes a reporting requirement on individuals with mental health conditions. If a person is licensed, they are required to submit medical information about their conditions. Private pilots must submit a report every three months. Professional pilots and air traffic controllers must submit every six. This requirement infantilizes licensees with mental health conditions by assuming that all mental health conditions render a person incapable of judging when she or he is fit to fly. It also duplicates reporting requirements, because treating physicians are required to report any ‘medical or optometric condition that is likely to constitute a hazard to aviation safety’ (Aeronautics Act, s. 6.5). If a licensee decides to stop treatment, for example, a physician would have to report that decision to Transport Canada.

Courts have already recognized that Transport Canada discriminates against individuals presenting with mental health conditions. In Canada v Bethune, the government sought judicial review of a Transportation Appeal Tribunal decision that ordered Transport Canada to reconsider a decision to deny Mr. Bethune medical certification. Mr. Bethune applied for a Category 2 medical certification to become an air traffic controller after passing NAV Canada’s rigorous tests. He had the job, and was forthright in disclosing persistent sadness to the CAME. After several months of waiting, he was forced to decline NAV Canada’s offer because Transport Canada had not yet decided on his medical certification. When it finally ruled against him, he appealed on the grounds that Transport Canada had applied the incorrect policy document: a newer policy was in force. The Tribunal ruled in his favour and held that: ‘The criterion at issue was whether Mr. Bethune had a “significant mental abnormality” that would render him unable to safely exercise the licence at issue – an air traffic controller licence’ (para. 9). The government, worried about precedent, sought judicial review in Federal Court. Justice Phelan agreed with the Tribunal and admonished government counsel in these terms:

It was suggested in argument that no new information would change the Minister’s decision. I take this as a piece of enthusiastic argument and not as a statement of Ministerial policy. If it were policy, there could be grave consequences to a biased and bad faith reconsideration.

Para. 17.

Bethune was decided in 2016; Standard 424 was never at issue in that case. Its application was at issue. The Transportation Appeal Tribunal and the Federal Court each held the government to an individualized process and evidence-based standard that complied with the words in Standard 424. That Standard, to be clear, has not been amended since 2007.

Mr. Bethune’s case unfortunately did not end in cheers. Transport Canada obeyed the letter of the court’s order. It reconsidered the decision. After a year spent waiting, Mr. Bethune was informed that he still did not meet the required medical criteria. Mr. Bethune, frustrated by this dilatory process–one that would wear anyone down–has since happily settled into a fresh line of work.

Ministerial policy has not much changed since Justice Phelan’s admonishment, which brings those ‘grave consequences’ into view. The above-quoted Handbook for Civil Aviation Medical Examiners has not been modified since 2010, when the current discriminatory policy was added as an amelioration to the above-pictured absolute prohibition. Transport Canada’s treatment of Mr. Bethune, moreover, suggests that the Justice Department’s lawyer uttered a premonition in court. Though the judge rightly admonished the Crown, judicial power cannot reform the institutional resistance that ultimately ruined Mr. Bethune’s hopes of becoming an air traffic controller.

Indeed, Transport Canada should be lauded for even considering the prospect that people with mental health conditions take to the skies. Thirty years ago, this was an unthinkable proposition, largely due to ignorance. Now, however, Transport Canada has much more scholarly research about mental health at its disposal. It can craft targeted policies that respond to Canada’s human rights commitments and its concern with aviation safety.

The apathy with which Civil Aviation Medicine has treated this issue runs counter to an evidence-based approach. Justice Phelan commanded such an approach in a specific case, but his writ unfortunately did not extend further.

The resulting lack of close judicial scrutiny means that medical opinion, with its biases, has been allowed to run unchecked through Canadian Civil Aviation Medicine. To be clear, the present cohort of Regional Aviation Medical Officers listed in CAM’s directory are all family physicians whose professional certifications disclose no training or expertise in mental health. This lack of intermediate-level experience may allow biases to run unchecked, for expertise called in at such a remove from individual applicants is at the mercy of pre-established first- and second-line medical opinion.

These opinions in the current regulatory environment identify applicants based on stigma, not individualized analyses. No one person is to blame, but Transport Canada is responsible for a bureaucracy that defines people by a cross-section of traits. These traits then become a person’s institutional identity at Transport Canada. Doctors wind up defining applicants without regard for their dignity or actual aptitudes.

A note about aviation safety

This commentary has so far focused heavily on Transport Canada’s faults. A disbelieving reader might grasp for an easy argument: people with unstable mental health are inherently unpredictable, and medication does not cure such ills. This argument is dated and borne of ignorance regarding the state of research in mental health.

The proper balance between safety and the right to be treated equally for those who have a mental health condition already exists in the Canadian Aviation Regulations. Any health condition must be shown to impair the safe exercise of the privileges of a person’s license. This burden falls upon the doctors employed by Transport Canada.

What’s more, once a person is licensed, they are obliged to self-assess prior to each exercise of the privileges associated with her or his license. Section 404.06 of the Canadian Aviation Regulations is crystal clear:

These provisions show that the legislator considered health conditions that could arise during the course of a person’s license. Instead of placing the responsibility upon the Minister of Transport to verify that every pilot is always compliant (an impossible task), the legislator instead made pilots responsible for their conduct.

Civil Aviation Medicine does not address this part of the Civil Aviation Regulations in its policy documents.

The implication, however, of this section is quite broad with respect to mental health. The current policy just discriminates; a more constructive approach in line with aviation safety is to consider mental health in conjunction with the ability to cognize and apply section 404.06. The question then becomes: if a pilot’s depression is such that they cannot safely pilot an aircraft on a particular day, is the pilot able to restrain herself or himself from exercising the privileges of her or his license?

Civil Aviation Medicine would no doubt reply that a pilot in this position could be impaired because some mental illness and associated treatments reduce reaction times. These kinds of problems, however, are legitimate concerns that warrant restrictions on a license or a refusal to license in particular cases, where evidence shows that individuals present safety hazards. The instant problem addresses a catch-all, or blanket approach to mental health that (to its credit) indiscriminately discriminates.

Canadian aviation medicine on the international stage

Other aviation communities have shown far greater leadership when it comes to medical licensing and mental health. Australia’s medical certification regime is a paragon that incorporate open treatment of mental health.

The strengths of Australia’s regime lies in the clarity with which medical standards are promulgated and communicated to doctors and the public. Clarity and a forthright approach to mental health reduce stigma.

Australian civil aviation medicine

Australia’s open approach to mental health conditions relies on regulations that are virtually identical to Canada’s. The difference lies in the country’s approach.

The Civil Aviation Safety Authority’s information page, for example, indicates that each case is unique and there are no textual markers of discrimination. The relevant section of the Designated Aviation Medical Examiners’ clinical practise guidelines indicates that ‘well managed depression is compatible with certification’. The guidelines take a neutral tone; they inform medical specialists about the procedures to be applied in cases that disclose mental health conditions. They also establish patient expectations regarding their condition and the steps needed for certification.

The absence of any mention of mental illness as a disabling condition, although implied, contrasts with Canada’s Handbook for civil aviation medical examiners, which expressly states that mental health conditions are disqualifying. Only after this statement operates on each applicant does Civil Aviation Medicine turn to creating exceptions based on an individual’s condition.

The Civil Aviation Safety Authority (CASA) goes so far as to provide the public and DAME with case scenarios for further clarity.

One such scenario coupled with CASA’s information page is suggestive of Australia’s positive approach. The subject of this scenario is a mid-life initial applicant for a medical certification. The certification is required to obtain a private pilot’s license. The subject discloses a history of depression that has responded well to medication. The subject is alert to his condition and can understand when he is unable to fly. The DAME reviewed the subject’s file, concluded that his condition was not serious enough to warrant rejecting his application. CASA (in this example) issued a certification with the proviso that the subject submit an annual report from his doctor regarding his depression. He was also restricted from flying if his condition or treatment changed pending a DAME review.

This scenario gives applicants and DAMEs a case-based framework with which to understand CASA’s evaluation protocol.

Australia’s Civil Aviation Safety Regulations are, moreover, quite a bit clearer than Canada’s when it comes to medical certification and mental health. Regardless of the class of license, a person is considered fit to fly if they do not have an

established medical history or clinical diagnosis of any of the following conditions, to an extent that is safety?relevant:

(a) psychosis;

(b) significant personality disorder;

(c) significant mental abnormality or neurosis

Tables 67.150, 67. 155, 67.160.

These criteria are a far cry from Canada’s more restrictive criteria in Standard 424, which gestures toward mental health concerns without indicating the severity required to trigger aviation medical certification concerns. Australia’s standard is clear: the mental health condition must rise to a level that significantly impairs a person’s psyche.

This standard coupled with public-facing documents that provide sufficient detail regarding acceptable mental health conditions and outcomes help de-stigmatize mental health in aviation medicine. They have, moreover, not created any significant additional safety concerns.

Rights, minimal impairment, and a proportional rule

Canada’s Charter of Rights and Freedoms guarantees equality to all before and under the law. The government may breach this guarantee to ensure social cohesion and public safety (s. 1). Any breaches in this regard must be prescribed by law. Where the law authorizes a breach, that breach must minimally impair subjects’ rights and/or must be proportionate to its policy objectives (R v Oakes). Breaches will often need to be justified with reference to social science evidence (Mounted Police Association of Canada, paras. 143-4).

Canadian aviation medicine’s offending conduct derives from law, but is not itself law. It is a policy of government that dictates Civil Aviation Medicine’s approach to mental health issues. This policy may be defensible as law if it is ‘authorized by statute’ (Greater Vancouver Transportation Authority, para. 65). The above analysis, however, shows that CAM has created a policy that offends its enabling legislation, the Canadian Aviation Regulations. As such, CAM’s policy is not authorized by statute, so its discriminatory conduct cannot be protected by the Charter.

Even if its conduct were protected by the Charter, CAM’s policy does not balance subjects’ right to equality with a very legitimate interest in aviation safety.

The need for balance is prescribed by the venerable Oakes test:

These latter categories create difficulty for Civil Aviation Medicine because any justification of doctors’ conduct requires an admission of disregard for the affected population or a plea of ignorance that arises from a lack of adequate aeromedical specialization in mental health issues.

Minimal impairment is not a difficult standard; it’s the standard of a decent, rational professional. This professional’s knowledge extends to the context in which they work and in which their field is situate. Civil Aviation Medicine, for example, is populated by doctors, whose medical knowledge also allows them to understand the limits of their expertise. These doctors are literate, and have knowledge of the regulatory context in which they work. They are also able to conduct further research on matters related to their duties, whether those be evaluating applicants for medical certification or crafting policy. Keeping to their creed, doctors also advocate for patients to the best of their ability.

This synopsis derives from Canadian jurisprudence regarding minimal impairment. The courts require government to show that it has chosen a policy from a range of reasonable alternatives (Health Services, para. 150). Enhancing the administration of a government program is not minimally impairing, even if such enhancement might benefit a greater population (Health Services, para. 151). The government must instead show that it considered its policy alternatives with regard for the interest of the affected population (Health Services, para. 150; Charkaoui, paras. 76, 86). When government action is being challenged, analogies may be drawn between the duty to accommodate under human rights law and Charter violations to show whether the government did its utmost to protect minority interests (Multani, para. 53). Minimal impairment may, moreover, be made out with reference to other jurisdictions (such as Australia) and to other international treaties to which Canada adheres (Carter, paras. 103-4; JTI Macdonald, para. 10; Whatcott, para. 67).

Civil Aviation Medicine’s current policy fails to show regard for applicants’ interest as a group that is potentially disadvantaged by CAM’s current practise. The practise of assuming that an applicant presenting with a mental health condition is immediately unfit to fly is inductive. It applies a group characteristic (in this case, a stigma) to more efficiently process medical certification applications. I am told that CAM processes over 50,000 of these a year: the current staff have to keep up. The implication of this statement is clear. Applications may be moved along faster than needed to ensure that the system runs smoothly; the courts do not tolerate this excuse. Analogies between the duty to accommodate and CAM’s practices also point to the problem. CAM does not accommodate in the initial phase of an application, where a person’s safety record is not yet in evidence. Accommodation only occurs after Transport Canada has stigmatized the applicant, and this is no accommodation at all if the applicant could have been assessed as medically fit.

Canada’s international obligations overwhelmingly support a more enlightened approach to mental health in aviation. The United Nations’ Universal Declaration of Human Rights guarantees a right to equality (article 1) and freedom from discrimination (article 7), subject only to ‘such limitations as are determined by law’ (article 29). The United Nations’ High Commissioner for Human Rights reported in 2017 that: ‘the experience of living with mental health conditions is shaped, to a great extent, by the historical and continuing marginalization of mental health in public policy’ (para. 14). The Commissioner went on to say that:

This stereotyping, prejudice and stigmatization is present in every sphere of life, including social, educational, work and health-care settings, and profoundly affects the regard in which the individual is held, as well as their own self-esteem. The lack of systematic training and awareness-raising for mental health personnel on human rights as they apply to mental health allows stigma to continue in health settings, which compromises care.

The full participation of affected communities in the development, implementation and monitoring of policy has a positive impact on health outcomes and on the realization of their human rights. Ensuring their participation supports the development of responses that are relevant to the context and ensures that policies are effective. Participation in lawmaking and policy design in mental health has typically been directed at health professionals, as a result of which the concerns and views of users, persons with mental health conditions and persons with psychosocial disabilities have not been systematically taken into account and harmful practices have been perpetuated and institutionalized in law and policies.

Paras. 16, 43.

ICAO, an organization based in Montreal, is closely affiliated with the United Nations. Its membership requires that a state also possess membership in the United Nations (Chicago Convention, art. 93 bis). UN members are subject to human rights obligations stemming from the UN; ICAO’s membership is subjected to those obligations. Medical standards promulgated under the Chicago Convention must therefore accord with international human rights obligations.

The last phase of the Oakes test balances the effect of a practise on individuals with its positive outcome for the general population (Frank, para. 76; KRJ, paras. 77-8).

The effects of CAM’s practise have been noted above. Their rehearsal here is only to note that the treatment of mental health conditions afforded to prospective and actual pilots and air traffic controllers can have life-altering consequences. Discrimination and perceived discrimination violate a person’s dignity and can impact her or his self-esteem. More critically still, CAM’s treatment may worsen a person’s mental health. Professional pilots and air traffic controllers may lose their livelihoods, which is a stressor that impacts mental health. It only takes a few words to capture these consequences, but for those affected by mental health conditions, the ramifications are much broader. The stigma still associated with mental health is, as noted above, enhanced when it is directed by the impersonal face of government. Individual well-being is seriously undermined.

The social benefit derived from such discrimination is minimal at best. Aviation safety is adequately protected when Civil Aviation Medicine turns its attention to the individual applicant in order to assess her or his actual ability. Treating physicians are, moreover, required to report any potential risks to aviation safety. The mechanisms maintain the balance between aviation safety and individual rights. A blanket prohibition that requires applicants to prove their fitness for an exception to that prohibition only serves to make Civil Aviation Medicine’s case processing more efficient. It does not address the legitimate aviation safety concerns that benefit society.

The effect of CAM’s policy is, then, far more dire than further adjustments to its policy.

Check out a.p.strom’s aviation law practise