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The articles listed below are intended to provide readers with general information. They should not be regarded or relied upon as legal advice or opinion.

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February 7, 2017 – Class Actions Certified Against Air Canada

February 7, 2017

DECISIONS Class Action Certification – Fuel surcharge – Choquette c. Air Canada, 2017 QCCS 234 Claim that fuel surcharge disproportionate compared to actual fuel cost – Defendant disputed jurisdiction of Court – Court found it has jurisdiction – Claim respects all four criteria of class action – Class action certified   CANADIAN TRANSPORTATION AGENCY DECISIONS Application – ACM Air Charter Luftfahrtgesellschaft mbH – Order No. 2017-A-11 Exemptions from the application of paragraphs 33.1(b) and 73(2)(c) and section 33.2 of the Air Transportation Regulations, SOR/88-58, as amended Application – Delta Air Lines, Inc. carrying on business as Delta Air Lines, as…

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January 31, 2017 – Pilot and AME Jointly Liable

January 31, 2017

DECISIONS Appeal – Freedom of expression – Cooperstock c. United Airlines Inc., 2017 QCCA 44 Appellant seeking provisional stay of injunction under appeal – Freedom of expression not infringed – Dismissed with costs Decision under appeal: United Airlines inc. c. Cooperstock, 2016 QCCS 4645 Judgement – Liability – British Columbia (Workers’ Compensation Board) v. Flanagan Enterprises (Nevada) Inc., 2017 BCSC 99 Case arising from plane crash due to engine failure – US and Canadian jurisdictions – Regulatory framework – Whether Transport Canada owes duty of care to plaintiff – Responsibility for plane maintenance program – Maintenance inspector found liable –…

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January 24, 2017 – Westjet Flight Attendant Union Drive May be Suspended

January 24, 2017

DECISIONS Adjournment Application – Claim due to passenger injury – Hayer v. Qatar Airways, 2016 BCSC 2477 Defendants seeking trial adjournment – Witness unavailable for trial – Injuries of passenger not properly settled for trial – Dismissed, trial to proceed as scheduled Application – Independent medical examination – Yu et al v 171817 Canada Inc., 2016 NWTSC 73 Defendant seeking IME in British Columbia – Plaintiff wants IME in California or by videoconference – Allowed, Plaintiff to attend IME in Vancouver in conjunction with examination for discovery Human Rights – Dismissal – McKenna v. Capitol Taxi – Ottawa, 2017 HRTO…

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January 17, 2017 – Fitness to Fly

January 17, 2017

DECISIONS Passenger Claim – Unfit to fly – Viens c. Sunwing, 2016 QCCQ 15820 $15,000 claim due to refusal to allow passenger to fly without medical certificate – Passenger obtained certificate but flight had departed – Decision to prohibit passenger to fly was made using all reasonable tools and with safety of all passengers in mind – Dismissed Discipline and termination – Unjust dismissal – Molina et Grand Falls Aviation Service Ltd., Re, 2016 CarswellNat 7018 Employee was dismissed – Employee brought unjust dismissal complaint under Canada Labour Code – Employee worked for period of six months in 2013 and…

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Preventing impaired flying: Where do we go from here?

January 12, 2017

By Larissa Volinets Schieven and Steven P. Williams The recent arrest of an intoxicated Sunwing Airlines pilot, who made it as far as the cockpit before passing out, has garnered significant attention, and left many wondering how commercial air carriers can best ensure impaired pilots don’t make it to take-off. Last week, Federal Minister of Transport, Marc Garneau, sent a letter to commercial air carriers expressing his concern over the incident, and reminding carriers of their “obligation to ensure that flight crew members are fit to fly” and their “responsibility to have procedures in place to identify and manage hazards…

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January 10, 2017 – Drugs, Alcohol and Pilots

January 10, 2017

DECISIONS Judicial Review – Termination payments – Raymond c. Bernier, 2016 CF 1403 Review of decision that successor employer was responsible for termination pay – Decision was reasonable – Employment terms amended between bankrupt and successor employer – Not continuous employment – Dismissed, payment order upheld Appeal – Failure to grant security clearance – Agosti v. Canada (Transport), 2016 FC 1410 Procedural fairness – Exception for late affidavit – Decision was reasonable – Jurisprudence provided Minister could “err on the side of caution” – Dismissed with costs Grievance – Termination for theft – Air Canada v Unifor Local 2002, 2016…

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January 3, 2017 – Pilot demotion not constructive dismissal

January 3, 2017

DECISIONS Motion – Security – Kelowna Flightcraft Air Charter Ltd. v Kales Group BV, 2016 ONSC 8015 Airfreight services provided – Notice to terminate contract and withhold payment – No right to specific fund – Matter is simple Claim/Counterclaim without need for security – Dismissed Employment – Wrongful Dismissal – Parker and Trans North Turbo Air Ltd., Re, 2016 CarswellNat 6708 Helicopter instructor/ pilot – Removed from Base Manager role due to request for leave – Pilot acquiesced to new position – Employee not constructively dismissed Appeal – Workplace Injury – Decision No. 2018/16, 2016 CarswellOnt 20205 Airline customer service…

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December 27, 2016 – Drone operators: Stay off TC’s naughty list

December 27, 2016

DECISIONS Arbitration – Interpretation – Jazz Aviation LP v Canadian Flight Attendant Union (CFAU), 2016 CanLII 87715 Collective Agreement – Clause interpretation – Flight attendant subject to reassignment Appeal – Indirect air service providers – Lukács v. Canada (Transportation Agency), 2016 FCA 314 Resellers – CTA determined not operating “air service” – CTA decision was reasonable and within its jurisdiction – Dismissed   CANADIAN TRANSPORTATION AGENCY DECISIONS Application – Shoreline Aviation, Inc. – Decision No. 372-A-2016 Pursuant to subsection 73(2) of the Canada Transportation Act, S.C., 1996, c.10, as amende Application – Air Canada also c.o.b. as Air Canada rouge…

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December 20, 2016 – Pilot Pathway Programs Continue to Grow

December 20, 2016

DECISIONS Supreme Court of Canada – Application for Leave to Appeal – Delta Air Lines Inc. v. Lukács, 2016 CarswellNat 6502 Lower Court decision: Lukács v. Canadian Transportation Agency, 2016 FCA 220   CANADIAN TRANSPORTATION AGENCY DECISIONS Application – Partner Jet Inc. – Order No. 2016-A-212 Exemptions from the application of paragraphs 33.1(b) and 73(2)(c) and sections 33.2 and 103.3 of the Air Transportation Regulations, SOR/88-58, as amended Application – WestJet – Order No. 2016-A-215 Exemption from the application of section 59 of the Canada Transportation Act, S.C., 1996, c. 10, as amended Suspension – Sky Wings Aviation Academy Ltd. – Order…

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Workplace Violence – Requirements and recent developments

December 19, 2016

Ontario’s Occupational Health and Safety Act (OHSA) was amended in June 2010, by Bill 168, to include new requirements for employers to address and prevent workplace violence. As a result, dealing with violence in the workplace has become a priority for employers. Although there are few decided OHSA prosecution cases to date dealing with the requirements relating to workplace violence, we are beginning to see some cases work their way through the system. Recent incidents of workplace violence have resulted in significant fines against employers who have failed to meet their statutory obligations. Those decisions assist in clarifying the statutory requirements and…

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Supreme Court of Canada upholds protection for solicitor-client privilege – statutory intrusions must be “clear and unambiguous”

December 15, 2016

In a surprising decision, a majority of the Supreme Court of Canada held that solicitor-client privilege may only be set-aside by statutory language that demonstrates a clear and unambiguous legislative intent to do so. In Alberta (Information and Privacy Commissioner) v. University of Calgary (November, 2016), the issue was whether the Alberta Information and Privacy Commissioner (the “Commissioner”) had the authority to order the production of records that were claimed to be solicitor-client privileged in order to determine whether the claim of privilege was properly asserted. The Commissioner argued that section 56(3) of the Alberta Freedom of Information Protection of…

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December 13, 2016 – Westjet pilots attempting to unionize – again.

December 13, 2016

DECISIONS Appeal – Workplace injury recurrence – Hébert et Innotech Aviation ltée, 2016 QCTAT 6658 Employee claimed workplace injury reoccurred – Employer and Commission deny recurrence and ordered repayment by Employee to Employer – Employee appealed Commission decision – Allowed – Reoccurrence of workplace injury found – No repayment required for period Employee was absent due to recurrence of workplace injury Passenger claim – Reimbursement for missed connection – Drapeau c. Air Canada, 2016 QCCQ 12923 Passenger claimed missed connection was responsibility of airline – Missed connection caused by delay in Customs – Airline not responsible for extraordinary delays by…

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Competent persons under the Canada Labour Code – employees must agree to impartiality

December 8, 2016

Readers of Focus will recall that under the Canada Occupational Health and Safety Regulations (the “Regulations”) passed pursuant to the Canada Labour Code, where a complaint of workplace violence cannot be resolved informally with the complaining employee, an employer is required to appoint a “competent person” to investigate the complaint. Section 20.9 of the Regulations defines a “competent person” to be, among other things, someone who is “impartial and is seen by the parties to be impartial” (underlining added). In a recent decision, the Occupational Health and Safety Tribunal Canada (the “Tribunal”) held that this requirement means that the complaining…

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December 6, 2016 – Employer Wins Training Bond Case

December 6, 2016

DECISIONS Constructive Dismissal – Training Bond – Wildcat Helicopters Inc. v. Ellis, 2016 BCSC 2214 Employer claim for reimbursement of training bond as per employment agreement – Employee failed to prove constructive dismissal – Employer awarded full training bond Judicial Review – Security Clearance – Britz v Canada (Attorney General), 2016 FC 1286 Flight Attendant denied security clearance renewal – Association with Hells Angels – Decision unreasonable – Judicial Review granted – Redetermination ordered Application – Jurisdiction – Jaffary v. ASP Incorporated, 2016 HRTO 1528 Allegation of discrimination by ASP – Duty of ASP security officers at GTAA – Work…

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November 29, 2016 – ULCC Model Coming to Canada

November 29, 2016

DECISIONS Appeal – Security clearance refusal – Quan v. Canada (Attorney General), 2016 FC 1181 Cargo handler – Suspected drug money – Minister to err on the “side of caution” – Decision was procedurally fair and reasonable Motion – Extension of timelines – Héli Express inc. c. Uscan Aviation Sales Ltd., 2016 QCCS 5658 Request for extension of timeline to file defence – Consent of all parties – Extension granted Request – Case management – Underhill v Central Aircraft Maintenance Ltd., 2016 SKQB 354 Request for case management judge – Opposed – Mandatory mediation not completed – Request denied  …

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