International Air Transport Association v. Canadian Transportation Agency

International Air Transport Association v. Canadian Transportation Agency
Court (s) Database
Federal Court of Appeal Decisions
Date
2022-12-06
Neutral citation
2022 FCA 211
File numbers
A-311-19
Notes
A correction was made on January 20, 2023
Decision Content
Date: 20221206
Docket: A-311-19
Citation: 2022 FCA 211
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
LOCKE J.A.
BETWEEN:
INTERNATIONAL AIR TRANSPORT ASSOCIATION,
AIR TRANSPORTATION ASSOCIATION OF AMERICA
DBA AIRLINES FOR AMERICA, DEUTSCHE LUFTHANSA AG,
SOCIÉTÉ AIR FRANCE, S.A., BRITISH AIRWAYS PLC,
AIR CHINA LIMITED, ALL NIPPON AIRWAYS CO., LTD.,
CATHAY PACIFIC AIRWAYS LIMITED,
SWISS INTERNATIONAL AIRLINES LTD.,
QATAR AIRWAYS GROUP Q.C.S.C., AIR CANADA,
PORTER AIRLINES INC., AMERICAN AIRLINES INC.,
UNITED AIRLINES INC., DELTA AIR LINES INC.,
ALASKA AIRLINES INC., HAWAIIAN AIRLINES, INC.
and JETBLUE AIRWAYS CORPORATION
Appellants
and
CANADIAN TRANSPORTATION AGENCY
and THE ATTORNEY GENERAL OF CANADA
Respondents
and
DR. GÁBOR LUKÁCS
Intervener
Heard at Ottawa, Ontario, on April 6 and 7, 2022.
Judgment delivered at Ottawa, Ontario, on December 6, 2022.
REASONS FOR JUDGMENT BY:
DE MONTIGNY J.A.
CONCURRED IN BY:
PELLETIER J.A.
LOCKE J.A.
Date: 20221206
Docket: A-311-19
Citation: 2022 FCA 211
CORAM:
PELLETIER J.A.
DE MONTIGNY J.A.
LOCKE J.A.
BETWEEN:
INTERNATIONAL AIR TRANSPORT ASSOCIATION,
AIR TRANSPORTATION ASSOCIATION OF AMERICA
DBA AIRLINES FOR AMERICA, DEUTSCHE LUFTHANSA AG,
SOCIÉTÉ AIR FRANCE, S.A., BRITISH AIRWAYS PLC,
AIR CHINA LIMITED, ALL NIPPON AIRWAYS CO., LTD.,
CATHAY PACIFIC AIRWAYS LIMITED,
SWISS INTERNATIONAL AIRLINES LTD.,
QATAR AIRWAYS GROUP Q.C.S.C., AIR CANADA,
PORTER AIRLINES INC., AMERICAN AIRLINES INC.,
UNITED AIRLINES INC., DELTA AIR LINES INC.,
ALASKA AIRLINES INC., HAWAIIAN AIRLINES, INC.
and JETBLUE AIRWAYS CORPORATION
Appellants
and
CANADIAN TRANSPORTATION AGENCY
and THE ATTORNEY GENERAL OF CANADA
Respondents
and
DR. GÁBOR LUKÁCS
Intervener
REASONS FOR JUDGMENT
DE MONTIGNY J.A.
[1] In this appeal, this Court is seized with a challenge to the validity of regulations adopted by the Canadian Transportation Agency (the Agency) to compensate air passengers for various delays, losses and inconveniences experienced in the course of international air travel.
[2] In May 2018, Parliament adopted the Transportation Modernization Act, S.C. 2018, c. 10 (the TMA), which amended the Canada Transportation Act, S.C. 1996, c. 10 (the CTA) by creating the new section 86.11. This new provision requires the Agency, after consulting with the Minister of Transport (the Minister), 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. In April 2019, pursuant to subsection 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.
[3] Around the same time, the Agency adopted the Air Passenger Protection Regulations, S.O.R./2019-150 (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. For ease of reference, the text of the Regulations can be found in the Annex to these reasons.
[4] The appellants challenge 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 under the Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 137 L.N.T.S. 11 (the Warsaw Convention), its successor the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999, 2242 U.N.T.S. 309 (the Montreal Convention), and the Carriage by Air Act, R.S.C. 1985, c. C-26 (the CAA). They also allege that many of the Regulations’ provisions are ultra vires because they have impermissible extraterritorial effects, which violate fundamental notions of international law. Finally, the appellants challenge the Minister’s Direction on the basis that it exceeds the limitations imposed by its enabling statute.
[5] For the reasons that follow, I am of the view that this appeal should be dismissed, except with respect to subsection 23(2) of the Regulations which I find ultra vires of the CTA.
I. Background
[6] The appellant International Air Transport Association (IATA) is a trade association whose members include 290 airlines from 120 countries, which carry approximately 82 per cent of the world’s air traffic. The appellant Air Transportation Association of America, DBA Airlines for America, is a trade association which brings together passenger and cargo airlines based in the United States, whose members transport more than 90 per cent of US air passenger and air cargo traffic. The remaining appellants are air carriers serving a large number of Canadian and international airports. With the exception of Air Canada and Porter, headquartered in Canada, all of the other appellant air carriers are foreign air carriers.
[7] The Agency is a regulator and quasi-judicial tribunal. It is empowered by the CTA, its enabling statute, to develop and apply rules that establish the rights and responsibilities of transportation service providers and users. As part of its regulatory function, the Agency makes determinations relating to matters such as the issuance of licenses, permits, and exemptions where appropriate, within the authority granted to it by Parliament. The Agency is also empowered to assign administrative monetary penalties to any breaches of the CTA or its regulations and to take enforcement action through designated enforcement officers. As a quasi-judicial tribunal, the Agency is tasked with resolving commercial and consumer transportation-related disputes, as well as adjudicating accessibility issues for persons with disabilities.
[8] Mr. Lukács describes himself as an “air passenger rights advocate”. He has appeared before this Court in a number of cases as an intervener. He was granted intervener status by Order of this Court dated March 3, 2020.
[9] In 2014, the Minister launched a review of the CTA to examine current issues in transportation, and to identify priorities and potential courses of action in the sector to support Canada’s long-term economic well-being. Informed by extensive consultations with Canadian transportation and trade stakeholders and individual Canadians, the review revealed the latter’s dissatisfaction with their air travel experiences, including with respect to the existing consumer protection regimes in place. The Report was tabled in Parliament by the Minister of Transport on February 25, 2016 (Canada Transportation Act Review, Pathways: Connecting Canada’s Transportation System to the World, Vol. 1 (Ottawa: Department of Transport, 2015)). It described the system in place as producing “suboptimal, piecemeal outcomes for industry, consumers, and the regulator alike” (at p. 203) and recommended that the government enhance air passengers’ rights.
[10] In response, the Minister tabled Bill C-49 in May 2017, which mandated the Agency to develop new regulations enhancing air passenger rights in Canada. On May 23, 2018, the legislature enacted the TMA, which amended the CTA to add the new section 86.11. This new provision required the Agency, after consulting with the Minister, to make regulations in relation “to flights to, from and within Canada, including connecting flights”, notably in respect of carriers’ obligations in case of flight delay, flight cancellation or denial of boarding, including minimum standards of treatment and minimum compensation, in certain circumstances, and for lost and damaged baggage.
[11] The Agency then launched a consultation process, to inform the development of the new air passenger protection regulations (Canadian Transportation Agency, Air Passenger Protection Regulations Consultations: What We Heard (Ottawa: Canadian Transportation Agency, 2018 (Air Passenger Protection Regulations Consultations)). Travellers and consumer advocates generally favoured the creation of a fair compensation regime that would reflect the inconvenience and losses suffered by passengers, including of their time. This suggestion was met with resistance by certain airlines, who warned that imposing minimum compensation for delays in international travel might contravene the Montreal Convention (see Appeal Book, Vol. 22, Tab 14, at p. 369-370). The Agency also considered best practices and lessons learned from air passenger protection regimes in other jurisdictions, including the European Union and the United States, as well as the regime provided by the Montreal Convention (Air Passenger Protection Regulations Consultations at p. 2).
[12] The proposed Regulations were published in Part I of the Canada Gazette in December 2018, and approved by the Governor in Council on May 21, 2019. The Regulations modified the rights and obligations of passengers and air carriers, defining carriers’ minimum obligations to passengers with respect to:
• Communication of passengers’ rights and recourse options (ss. 5-7);
• Flight delays, cancellations and denied boarding (ss. 10-21);
• Tarmac delays of three hours or more (ss. 8-9);
• The seating of children under the age of 14 (s. 22); and
• The terms and conditions on the transportation of musical instruments (s. 24).
[13] Shortly before the adoption of the Regulations (on or about April 26, 2019), the Minister also issued the Direction, purportedly in reliance of subsection 86.11(2) of the CTA. As we shall see later, the appellants contend that this Direction seeks to expand the Agency’s regulation-making authority, to the extent that paragraph 86.11(1)(f) only authorizes the imposition of obligations in respect to tarmac delays in excess of three (3) hours.
[14] With respect to flight delays, cancellations and denied boarding, the Regulations establish informational (s. 13) and assistance (ss. 14, 16) obligations, require carriers to provide alternate travel arrangements and, in certain circumstances, refund a ticket or an unused portion of it. Additionally, the Regulations imposed a standardized minimum compensation amount for passengers who experienced flight delays, cancellations or denial of boarding that was “within the carrier’s control” but is not required for safety purposes. The amount of compensation ranges from $125 to $2400, depending on the size of the carrier (large or small) and the length of time between the scheduled and actual arrival (ss. 12, 19-20).
[15] Under subsection 86.11(4) of the CTA, the new obligations flowing from the Regulations are “deemed to form part of the terms and conditions set out in the carrier’s tariff” insofar as they are more advantageous than the terms and conditions of carriage already provided for in the carrier’s tariffs. Where a carrier fails to comply with these obligations, passengers may file a complaint with the Agency, which would in turn determine whether the carrier had failed to apply its tariffs. If found not to have applied the tariffs, carriers could be subjected to the Agency’s “corrective measures”, including an order to pay the required compensation under the Regulations, and administrative financial penalties under section 32.
[16] The Regulations came into force on July 15, 2019, with the exception of sections 14, 19, 22, 35 and 36, which came into effect on December 15, 2019.
[17] On June 28, 2019, the appellants filed a motion under section 41 of the CTA before this Court for leave to appeal the Regulations. This Court granted leave on August 15, 2019.
[18] The Attorney General of Canada filed a motion on December 2, 2019, seeking leave to present expert evidence on foreign law, specifically air passengers’ rights in State parties to the Montreal Convention. The Attorney General argued that this evidence is relevant to the appeal since the practice of State parties, including their domestic legislation and judicial decisions, is a recognized means of interpreting a treaty such as the Montreal Convention. This Court (per Justice Rennie) granted leave on January 27, 2020. The Attorney General filed, in July 2020, the affidavit of Professor Vincent Correia, which purported to describe the state of the law concerning air passenger rights in 73 states.
[19] In response, the appellants filed affidavits from Professors Pablo Mendes de Leon and Paul S. Dempsey on July 3, 2020. In these affidavits, the experts presented the state of the law in foreign jurisdictions, but also opined on the interpretation of the Montreal Convention and its compatibility with foreign regimes. The Attorney General filed a motion to strike out parts of these affidavits on July 30, 2020. This Court (per Justice Mactavish) found that the jurisprudence on the necessity and admissibility of expert evidence on international law was equivocal, and dismissed the motion on October 19, 2020, leaving the matter to the panel hearing the appeal.
[20] On January 7, 2021, the Attorney General obtained leave from this Court (per Justice Mactavish) to file responding expert evidence relating to the interpretation of the Montreal Convention, subject to this Court’s ruling on the admissibility of the challenged evidence from Professors Mendes de Leon and Dempsey. On February 26, 2021, the Attorney General filed the affidavit of Professor Elma Giemulla on the interpretation of the Montreal Convention and on its compatibility with the European Union regime regarding air passenger rights.
II. Issues
[21] This appeal raises important questions as to how the Montreal Convention applies within Canadian law, and more broadly, on Parliament’s ability to provide for the regulation of air passenger rights in the context of international travel. To answer that question, three main issues must be addressed:
Is the minimum compensation to passengers required by the Regulations in the case of delay, cancellation, denial of boarding and lost or damaged baggage, when applied to international carriage by air, authorized by subparagraph 86.11(b)(i) of the CTA and compatible with the Montreal Convention?
Are any of sections 5-8, 10(3), 11(3)-(5), 12(2)-(4), 13-18, 23 or 24 of the Regulations ultra vires the CTA insofar as they apply to international service because of an impermissible extraterritorial application?
Is the Direction intra vires of the authority of the Minister under subsection 86.11(2) of the CTA?
[22] Before turning to these questions, however, two preliminary matters need be resolved. The first relates to the Court’s jurisdiction to invalidate the Direction. In his submissions, the intervener submits that this Court lacks jurisdiction to hear the challenge to the Minister’s Direction – which is the sole basis to the challenge of section 8 of the Regulations – because the Direction is not a “decision, order, rule or regulation” of the Agency within the meaning of section 41 of the CTA. Rather, the Direction emanates from the Minister, and is therefore a decision of a “federal board, commission or other tribunal” under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7, for which this Court does not have jurisdiction under section 28. Following this argument, the power to review the Minister’s Direction falls within the exclusive purview of the Federal Court under section 18 of the Federal Courts Act.
[23] The second preliminary matter to be addressed is the admissibility of the appellants’ expert evidence. As previously mentioned, the Attorney General filed a motion to strike parts of the affidavits of Professors Mendes de Leon and Dempsey because they contained inadmissible legal opinions on the interpretation of the Montreal Convention. By direction of this Court, this issue was dealt with by the parties as part of their overall submission on the merits. Because it is essential to determine which parts of these opinions can be relied upon to determine the substantive issues of which this Court is seized, I will also deal with this issue in a preliminary manner.
III. Preliminary matters
A. The jurisdictional issue
[24] If the appellants were challenging the Minister’s Direction and were seeking an order setting it aside as a stand-alone issue, there is no doubt in my mind that they would have had to proceed by way of judicial review before the Federal Court. The intervener is correct that section 18 of the Federal Courts Act grants original and exclusive jurisdiction to hear applications for judicial review about the Minister’s actions to the Federal Court.
[25] In the case at bar, however, this is not what the appellants are seeking. As is made plain by the Notice of Appeal and the relief sought at paragraph 154 of their Memorandum of Fact and Law, the appellants challenge the validity of the impugned provisions of the Regulations (and in particular, section 8 of these Regulations). It is in the course of this challenge that they question the validity of the Direction, because the Direction is crucial to the validity of section 8 of the Regulations at least with respect to tarmac delays of less than three hours.
[26] As was made clear by the Supreme Court of Canada in Windsor (City) v. Canadian Transit Co., 2016 SCC 54 (at paras. 25-26), it is necessary to determine the “essential nature or character” of a claim to decide whether the Federal Court (or the Federal Court of Appeal) has jurisdiction over it. Quoting from Domtar Inc. v. Canada (Attorney General), 2009 FCA 218 (at para. 28), the Supreme Court went on to write that the essential nature of a claim will be determined on “a realistic appreciation of the practical result sought by the claimant”.
[27] The Attorney General rightly acknowledges that this Court must have jurisdiction to consider the legality of the Direction, to the extent that it is relevant (and even central, in my view) to its analysis of the validity of section 8 of the Regulations. It would be most impractical and inimical to the principle of access to justice to require the appellants to first challenge the Direction before the Federal Court by application for judicial review before challenging section 8 of the Regulations in a parallel appeal pursuant to section 41 of the CTA. As a superior court, this Court must have plenary jurisdiction to decide any matter of law arising out of its original jurisdiction: Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at para. 36; Deegan v. Canada (Attorney General), 2019 FC 960 at para. 227; Bilodeau-Massé v. Canada (Attorney General), 2017 FC 604 at paras. 74, 80, 82-83.
[28] As a result, the intervener’s argument on jurisdiction must be rejected. This Court undoubtedly has the power to rule on the validity of section 8 of the Regulations, and must therefore be able to determine whether the Direction that underpins it is intra vires section 86.11 of the CTA.
B. The admissibility issue
[29] As previously mentioned, the Attorney General filed a motion in writing under Rule 369 of the Federal Courts Rules, S.O.R./98-106 seeking an order striking out portions of the affidavit of Professor Mendes de Leon dated June 2, 2020 and of the affidavit of Professor Dempsey dated March 30, 2020 filed by the appellants. More particularly, the Attorney General asked this Court to strike out paragraphs 47, 59 to 91 and 115 of Professor Mendes de Leon’s affidavit, and paragraphs 28 to 41 of Professor Dempsey’s affidavit. In a nutshell, the Attorney General argues that these paragraphs of the two affidavits are inadmissible because they provide legal opinions with respect to the interpretation of the Convention, an issue that is at the very core of the present appeal. Moreover, in the Attorney General’s view, such legal opinions involve issues of international law, which are not matters of fact but rather matters of law of which Canadian judges can take judicial notice.
[30] After reviewing the case law and literature on the subject submitted by the parties, Justice Mactavish came to the conclusion that “the law appears to be somewhat less settled” with respect to the need for expert evidence when questions of international law, as opposed to questions of foreign law, are involved: International Air Transport Association v. Canada (Transportation Agency), 2020 FCA 172 at para. 14. On that basis, she decided that it was preferable to leave that issue to the panel assigned to hear the appeal on the merits.
[31] Before ruling on this motion, it is worth recalling that the Attorney General had previously been granted leave to introduce expert evidence on the law and practice applicable in certain foreign states with respect to air passengers’ rights. The Attorney General had argued that such evidence was relevant because the practice of State parties is a recognized means of interpreting a treaty such as the Montreal Convention. Justice Rennie agreed with the Attorney General, recognizing that expert evidence is the only permissible means by which evidence of foreign law and practice may be adduced.
[32] In Section II of his affidavit, Professor Mendes de Leon describes the relevant laws of the European Union and its member states, the member states of the European Free Trade Association and the European Common Aviation Agreement Area as it relates to the liability of air carriers to passengers in respect of flight delays, flight cancellations and denial of boarding. This section is not controversial, as it clearly qualifies as evidence on foreign law. The only paragraph of that section to which the Attorney General objects is paragraph 47, where Professor Mendes de Leon states that a decision of the European Court of Justice (ECJ) (Sturgeon v. Condor; Böck and Lepuschitz v. Air France, Joined cases C-402/07 and C-432/07, [2009] ECR I-10954 [Sturgeon]) was much criticized on the basis that the Court departed from its judicial role and in effect amended Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EC) No 295/91 [2004] OJ, L 46/01) (Regulation 261/2004) by creating a right to non-compensatory payments for flight delays. I will say more on that decision when dealing with the merits of the parties’ arguments.
[33] Sections III and IV of Professor Mendes de Leon’s affidavit are the most contentious. In section III (paragraphs 59-75), he states that whether EU Regulation 261 is in the application of the Montreal Convention requires him to opine on whether that Regulation is aimed at giving effect to the EU’s treaty obligations under the Montreal Convention (at para. 59). After providing the context in which Regulation 261/2004 was adopted and examining Regulation 261/2004 itself, Professor Mendes de Leon offers the following conclusions:
71. In my opinion, it is apparent that Regulation 261 was intended to address matters not governed by the Montreal Convention, 1999, and therefore was not adopted in order to give effect to the EU’s treaty obligations thereunder. As explained above in this Affidavit, in the Sturgeon case the ECJ controversially extended the obligation to provide compensation imposed on air carriers by Regulation 261 to flight delay. Significantly, the ECJ’s reasons for extending compensation beyond denial of boarding and flight cancellation are not at all based on the Montreal Convention, 1999, which is neither discussed nor even mentioned in its judgment.
72. In my opinion, the Sturgeon judgment’s extension of the compensation provided for in Article 7 of Regulation 261 to flight delay cannot, therefore, be seen as “giving effect” to the EU’s treaty obligations under the Montreal Convention, 1999.
[34] In Section IV of his affidavit (paragraphs 76-91), Professor Mendes de Leon provides his views as to whether the European Union regime governing passenger compensation, and in particular Regulation 261/2004, is consistent with the Montreal Convention. After describing in broad terms the Montreal Convention and critically commenting on the ECJ jurisprudence interpreting Regulation 261/2004 as not being in breach of the Montreal Convention, Professor Mendes de Leon offers his interpretation of the exclusivity principle found in Article 29 of the Convention:
89. The language of Article 29 of the Montreal Convention, 1999, is, in my opinion, clear and precise. Pursuant to the first, and principal method of treaty interpretation, a treaty provision must be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose, which, in the case of the Montreal Convention, 1999, is uniformity of rulemaking in respect of international carriage by air. Article 29, and therefore the Montreal Convention, 1999, thus clearly excludes claims by passengers against air carriers for damages for inconvenience caused by flight delay in respect of international carriage by air.
(emphasis in original)
[35] Section V and VI of his affidavit are not contentious, as they deal with air passenger compensation in other jurisdictions and therefore relate, strictly speaking, to foreign law.
[36] Professor Dempsey’s affidavit is focused on the law of the United States as it relates to the liability of air carriers to passengers. Section II of his affidavit (paragraphs 14 to 22) deals with the legal regime in respect of flight delays, flight cancellations, denial of boarding, and damage to or loss of baggage. Section III (paragraphs 23-46) purports to deal with the consistency of US law with the Montreal Convention. By way of introduction, Professor Dempsey explains that the US is a “monist” jurisdiction because the US Constitution provides that international treaties are the law of the land. Since international treaties are self-executing, without any requirement of formal promulgation into a statute, there is no distinction between international law and domestic US law, and the US law on passenger compensation in the field of international air travel is the Montreal Convention. An opinion on the latter is therefore an opinion on US law, the implication being that it should be admissible in Canadian law because it constitutes expert evidence on foreign law.
[37] Professor Dempsey then goes on with a brief description of the Montreal Convention, in the course of which he opines on the scope of the exclusivity principle found in Article 29 of the Montreal Convention:
30. As noted above, the Montreal Convention stipulates that the carrier is liable for damage sustained in case of destroyed, lost or damaged baggage, and damage occasioned by delay to passengers or baggage. In light of the aforementioned exclusivity principle of Article 29, any regime that provides for automatic minimum compensation in the event of delays to passengers, or for lost, delayed or damaged baggage, would be in violation of the Montreal Convention. The Convention provides for compensation for provable damages up to a specified amount, and explicitly provides the exclusive remedy for claims arising in international air transportation.
31. The Convention does not provide for any recourse for delay in the absence of proof of loss; any such recourse would be non-compensatory which is excluded by Article 29.
[38] At paragraphs 32 to 36 of his affidavit, Professor Dempsey addresses the issue of whether there is a conflict between US law and international law on issues of passenger delay or baggage loss, damage or delay. On most topics, there can be no conflict because the US Department of Transport refers consumers who have claims against airlines for international flights to the Montreal Convention. The only area in which the US regulations address air carrier liability and impose obligations of compensation to passengers is in the area of denied boarding compensation for overbooking, an issue which, in the opinion of Professor Dempsey, does not fall under the Montreal Convention. Once again, he comes to that conclusion on the basis of his interpretation of the Montreal Convention:
35. […] Nonperformance of the contract of carriage falls outside of the Convention, for the Convention is based upon a contract of carriage for international transportation, whose flight originates and is destined to a contracting State. If the failure of the carrier to perform is deemed to constitute non-performance of the contract of carriage, then the dispute falls wholly outside the Warsaw or Montreal regime, and the aggrieved passenger may pursue his domestic law remedies, without any ceiling on actual damages recoverable.
[39] Interestingly, he relies for that proposition on a number of cases and legal commentaries, including some of his own publications.
[40] Finally, Professor Dempsey expresses the view in Section IV of his affidavit (paragraphs 37-41) that US laws were made in the application of the Montreal Convention. He comes to that conclusion because the US is a monist state, the US case law on delay applies the Montreal Convention, and the US government has refrained from promulgating aviation regulations addressing air carrier liability in international air transportation in deference to the exclusivity and pre-emption provision of the Montreal Convention.
[41] The Attorney General claims that much of Sections III and IV of Professor Mendes de Leon’s affidavit and Sections III and IV of Professor Dempsey’s affidavit, which opine on whether the law of the European Union and the United States is in the application of the Montreal Convention and is consistent with it, should be struck. According to the Attorney General, these portions of the two affidavits, along with Professor Mendes de Leon’s criticism of the Sturgeon decision of the ECJ (paragraph 47) and a paragraph on the application of the Montreal Convention in New Zealand (paragraph 115), are nothing more than legal opinions on the interpretation of an international convention that is at the core of the substantive legal issue to be decided by this Court. According to the Attorney General, the only purpose of that evidence is to give more weight to the legal position advanced by the appellants than it would have if it was merely argued by counsel.
[42] There is no doubt that the Montreal Convention, adopted on May 28, 1999 in Montreal, ratified by Canada and incorporated in its domestic law via amendments to the CAA (s.2(2.1)) is at the heart of this appeal. The appellants have advanced a number of arguments in support of their position that the Regulations are ultra vires the CTA. They have argued that in enacting section 86.11 of the CTA, Parliament must be presumed not to have authorized the adoption of delegated legislation that would be inconsistent with the Montreal Convention as incorporated in Canadian law. In a similar fashion, they have also submitted that section 86.11 must be construed as not authorizing the adoption of regulations that would be inconsistent with the Montreal Convention, since Parliament must be presumed to legislate in a manner compatible with Canada’s international obligations. The appellants do not dispute that the interpretation of the Montreal Convention is central to these two arguments.
[43] To be successful, the appellants must convince this Court that the non-compensatory damages for flight delays, flight cancellations, denials of boarding and lost or damaged baggage provided for by the Regulations are prohibited by the Montreal Convention, exceed the limit of liability set forth in the Convention and ignore the exclusion of liability of the Convention. If there is no inconsistency, the Regulations are not ultra vires since they would fall within the regulation-making authority of section 86.11 of the CTA. At least to that extent, there is agreement between the parties.
[44] It is well established in Canadian evidence law that facts are to be pleaded and proved, whereas law does not need to be proved and courts will take judicial notice of it. Opinions on matters of law are therefore not admissible, since it is for the court to decide questions of law. Although affidavit evidence must generally be confined to facts that are within the deponent’s personal knowledge (Rule 81(1) of the Federal Courts Rules), a party will exceptionally be allowed to adduce expert opinion on questions of fact when it meets some requirements.
[45] Foreign law has long been characterized as fact for the purpose of the law of evidence. It must be pleaded and proved at trial, unless otherwise provided by statute. In most cases, this will be done by expert evidence: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 120 [Hape]; Asad v. Canada (Citizenship and Immigration), 2015 FCA 141 at para. 24; JP Morgan Chase Bank v. Lanner (Le), 2008 FCA 399, [2009] 4 F.C.R. 109 at paras. 18, 35 and 57; Friedl v. Friedl, 2009 BCCA 314 at para. 20.
[46] On that basis, should international law be treated as a question of fact? This is a vexed question, which doesn’t lend itself to an easy answer in Canadian law and which has been the subject of varied treatment in the jurisprudence. The appellants submit that there is no rule according to which expert evidence on international law is inadmissible per se. Courts may take judicial notice of international law that is incorporated into Canadian law, but it is argued that courts may also receive and rely on expert evidence on international law where the normative content of the international law principles at issue is “unsettled, controversial or emerging” (Appellants’ Responding Written Representations re Attorney General’s motion to strike parts of the appellants’ affidavits at para. 41 [Appellants’ Responding Written Representations]). The Attorney General, on the other hand, forcefully argues that international law is a question of law, that Canadian courts should take judicial notice of it, and that evidence purporting to give a legal opinion on the interpretation or application of an international convention is inadmissible, “especially when this is a central issue the Court has to resolve to dispose of a case” (Attorney General’s Written Representations on motion to strike parts of appellants’ affidavits at para. 55).
[47] In my opinion, the latter view is to be preferred, at least with respect to customary international law and to international treaties that have been incorporated into Canadian law. I leave aside for the purpose of this discussion international conventions and treaties that have not been implemented by Canadian (federal or provincial) statutes, since they are not part of Canadian law. There is no need to consider how an international instrument that Canada has ratified but not yet implemented ought to be brought into evidence given that the Montreal Convention was incorporated into Canadian law through the CAA.
[48] There are many reasons why Canadian courts should take judicial notice of international law without the need to resort to expert opinion. First of all, international law is in many respects domestic law. I appreciate that Canada, unlike other legal systems like that of the United States, is a dualist system to the extent that rules of international law must be incorporated or adopted into the domestic legal order in order to be applied by domestic courts. This is true, however, only with respect to international treaties. Following the common law rule of adoption, it has long been recognized that prohibitive rules of customary international law forms part of Canadian law in the absence of conflicting legislation: see Hape at paras. 36-39 and the cases referred to. As for treaties, once incorporated, they are Canadian law for all intents and purposes. Accordingly, the fact that Canada is a dualist state should not be overblown and is not critical to resolve the issue that is before us.
[49] A second related reason why international law should be subject to the same rules of evidence as Canadian law is the presumption that domestic law will be interpreted so as to conform to Canadian international obligations. As noted by Gibran van Ert (“The Admissibility of International Legal Evidence” (2005) 84 C.B.R. 31, at p. 38 [van Ert]), there is no presumption that Canadian law respects the requirements of the law of foreign countries, since these laws do not bind Canada. On the contrary, customary international law and treaties that have been ratified by the Canadian government are binding and violations will attract international responsibility.
[50] A third reason for courts to take judicial notice of international law derives from the law relating to the admissibility of expert opinion evidence. The leading authority on that question is the decision of the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9, (at p. 20) [Mohan]. In that case, the Court set out four criteria for the admissibility of such evidence: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert. In a subsequent case, the Court added a second step, namely the balancing of the potential risks and the benefits of admitting the evidence, in order to decide whether the potential benefits outweigh the risks: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 at para. 24 [White Burgess]; see also: R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170 at paras. 16-17.
[51] Before discussing the application of these criteria, it is worth considering, as pointed out by van Ert, that Mohan and White Burgess were not dealing with expert opinion on questions of law but rather on questions of fact. It could be argued, therefore, that the criteria set forth in these decisions were not meant to apply to expert opinions on questions of law, and thus cannot be relied upon to justify the introduction of such opinions into the evidence.
[52] Be that as it may, I agree with the Attorney General that expert opinion on a question of law can hardly be necessary, given the Court’s expertise on matters of law. Even if necessity should not be judged “by too strict a standard” (Mohan at p. 23), the expert opinion must still bring an expertise that is outside the purview of a judge’s skills and knowledge. This is clearly the case when the application of the law is predicated on a good grasp of scientific and technical matters, as is often the case in patent law. This is to be contrasted with those cases where the legal issue, albeit novel or complex, does not require any particular expertise beyond that expected from a judge. In those cases, a judge can come to his or her own conclusions and will not need expert opinions. As this Court stated in Canada (Board of Internal Economy) v. Canada (Attorney General), 2017 FCA 43 (at para. 18) [Board of Internal Economy], “[t]his is precisely why questions of domestic law (as opposed to foreign law) are not matters upon which a court will receive opinion evidence. Such matters clearly fall within the purview of the court’s expertise and opinion evidence on these issues would usurp the court’s role as expert in matters of law”; see also: Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59 at para. 41; Brandon (City) v. Canada, 2010 FCA 244 at para. 27; Dywidag Systems International, Canada, Ltd. v. Garford PTY Ltd., 2010 FCA 223 at paras. 10-11; Sopinka, Lederman