A leap of faith: airlines’ liability for human rights abuses in international air travel

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.

Clarke, Contracts of Carriage by Air, p. 163.

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.