Case information

Transportation law — Air transport — Validity of Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) adopted by Canadian Transportation Agency (“Agency”) to compensate air passengers for various delays, losses and inconveniences experienced in course of international air travel — Whether liability provisions of Regulations, when applied to international carriage by air, are inconsistent with Canada’s obligations under Convention for the Unification of Certain Rules for International Carriage by Air (“Montreal Convention”), and ultra vires Agency’s regulation-making power under s. 86.11 of Canada Transportation Act, S.C. 1996, c. 10 (“CTA”), and therefore invalid — Whether Federal Court of Appeal erred by deciding that expert evidence on issues of international law is inadmissible as a matter of law, and by striking those parts of appellants’ expert evidence addressing whether “state practice” relied upon by Attorney General of Canada (“AGC”) is “in the application of”, and consistent with Montreal Convention?<br>

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This case involves a challenge to the validity of regulations adopted by the Agency to compensate air passengers for various delays, losses and inconveniences experienced in the course of international air travel.

Parliament adopted the Transportation Modernization Act, S.C. 2018, c. 10 (“TMA”), which amended the CTA by creating the new s. 86.11. This new provision requires the Agency, after consulting with the Minister of Transport, to make regulations imposing certain obligations on air carriers, notably in relation to flight delays, flight cancellations, denial of boarding, and loss of or damage to baggage.

Pursuant to s. 86.11(2) of the CTA, the Minister issued the Direction Respecting Tarmac Delays of Three Hours or Less, S.O.R./2019-110 (the Direction) requiring the Agency to adopt regulations imposing obligations on air carriers to provide timely information and assistance to passengers in cases of tarmac delays of three hours or less.

Around the same time, the Agency adopted the Regulations, imposing obligations, including liability, on air carriers with respect to tarmac delays, flight cancellations, flight delays, denial of boarding and damage or loss of baggage in the context of domestic and international air travel.

The appellant airlines challenged numerous provisions of the new Regulations on the basis that they exceed the Agency’s authority under the CTA. They claim that the Regulations contravene Canada’s international obligations, in particular the Montreal Convention and many of the Regulations’ provisions are ultra vires because they have impermissible extraterritorial effects, which violate fundamental notions of international law.

These matters went directly to the Federal Court of Appeal. It dismissed the appeal, except with respect to s. 23(2) of the Regulations which it found ultra vires of the CTA (this section deals with liability for temporary loss of baggage).