The 8th of February brought with it another lucky number 8 – the 8th annual Aviation Conference. Hosted jointly by Paterson, MacDougall LLP (PMLaw) and Alexander, Holburn, Beaudin & Lang LLP (Alexander Holburn), by all accounts the conference was another great success with representatives of carriers, insurers, regulators and aviation lawyers enjoying a fine day of education and entertainment.

The day’s events got off to a quick start with our first panel’s discussion of the legal issues the industry faces for 2007 moderated by Patrick Saul of Alexander, Holburn. Andy Harakas of Clyde & Co. US informed us all about the Tokyo Convention; a little-known but powerful tool for dealing with on-board acts that are unlawful or threaten the safety of passengers or crew and where pilots-in-command are immunized from liability arising from actions taken under a reasonable belief that the situation required action be taken.

Air Canada’s Assistant General Counsel, Louise-Hélène Sénécal, after describing a recent case in which Air Canada was successful in obtaining a dismissal on similar grounds, went on to discuss the CTA hearing of the “one passenger, one ticket” case. We also heard that carriers are now facing claims not only from obese passengers who demand accommodations, but also from passengers of normal size who are seated next to – and impinged upon by – larger passengers. Perhaps the Federal Court can find a way to help carriers out from between this rock and that hard place.

The first panel concluded with two speakers on the subject of infectious diseases on board aircraft. Dr. Claude Thibeault, now medical advisor to IATA, provided a comprehensive report on the risks posed by infectious diseases and how the design of modern aircraft reduces the risk of disease spreading from one passenger to another. When the systems are working, in-flight air is cleaner than the air on most city corners. When these systems are not working, however, litigation is just around the corner: Michael Dery of Alexander Holburn presented a case line-up of the usual, and some unusual, suspects: influenza, Norwalk, and SARS.

Fuelled with surprisingly good coffee, Alexander Holburn’s Darryl Pankratz hosted our second panel focusing on accident scene investigation. Dave Harrington of Holland & Knight described his experiences dealing with America’s National Transportation Safety Board and an American perspective that not only are public hearings intrinsically valuable to relatives and industry but also provide the opportunity for political grandstanding and advancing hot-button issues not directly related to the accident. Clay Hunter of PMLaw then discussed the Hayes Heli-Log case, which has defined the extent of the privilege afforded to communications with the Canadian Transportation Safety Board (TSB). A panel consisting of Tim Trembley of PMLaw, Mike Stacey from the TSB, and Martin Gyroky of Global Aerospace fielded questions relating to dealings with the TSB more generally; we thank Mike in particular for providing us with an invaluable insider’s view.

Bruce MacDougall of PMLaw chaired our third panel, a mélange of current topics of interest to the industry. Fred Gaspar of ATAC, apparently unfazed by the impressive lunch, sounded a call to action in support of a domestic industry that would be not only sustainable but profitable, and attacked regulatory inefficiency and red tape imposed on carriers and airports in Canada. Richard Doherty, although new to his position as Senior VP Aviation at Marsh Canada, provided a detailed look at the state of the aviation insurance industry since 2001: the book is healthy, but don’t expect any premium reductions just yet! PMLaw’s Soma Ray-Ellis, counsel to Air India at the Air India Inquiry, outlined the seven key issues that Commissioner for the Inquiry, Justice Major states must be resolved to avoid another, similar tragedy. The Inquiry has set an aggressive timetable and we are hopeful that we will be able to share the results at our 9th annual conference. The third panel concluded with PMLaw’s Carol McCall discussing Canada’s “Passenger Protect” list, more commonly known as the ‘no-fly’ list. While the list itself is not a reality, the regulatory framework has been put in place for a list that is effective but that will minimize false-positives and still provide a robust system for review and removal.

The day’s final panel, an update on Canadian and International court decisions, was chaired by PMLaw’s Tim Trembley. Alexander Holburn’s Darryl Pankratz outlined several cases of importance to the Canadian industry, including decisions on the assessment of damages for an aircraft hull loss where there have been significant modifications to the aircraft; the utility (or lack thereof) of the ‘shotgun’ approach to prosecuting a claim; a Supreme Court decision on liability for a mid-air collision; and the affirmation of the restricted basis for awarding punitive damages in Fidler v Sun Life. Following Darryl’s common-law update, Michael Goodhue of Gascoe, Goodhue LLP in Montreal set the scene in Quebec, still the “Wild West” of Canadian class-action jurisdictions. Even there, judges are slowly reigning in enterprising plaintiffs’ counsel and a recent milk marketing decision may place more significant burdens on proposed class actions, particularly with respect to the selection of the representative plaintiff.

Andy Harakas then made a return appearance to discuss three issues of central importance to the aviation bar. In his estimable opinion, DVT cases are now reaching the end of their shelf-life, with decisions being handed down firmly against plaintiffs in the USA, UK, and Australia. American litigation of injury cases arising outside the US may also be on the wane, as some recent decisions indicate that American courts are showing more resolve in declining jurisdiction on the basis of forum non conveniens. Andy concluded with reports on two recent decisions in which claims based in breach of contract were found to fall within the Warsaw/Montreal Conventions and, accordingly, were dismissed for failure to fall within the enumerated grounds for claims at Articles 17-19. PMLaw’s Gavin Magrath closed out the panel, and the day’s educational component, with a discussion of psychological injuries arising out of the Ontario Court of Appeal’s recent decision in Mustapha v Culligan overruling the trial court’s award for psychological damages resulting from the plaintiff’s observing a dead fly in a new and unopened bottle of water. A decision that eliminated the primary/secondary victim dichotomy and established a test based on reasonable foreseeability of psychological damage to the person of normal fortitude. It can only be hoped other jurisdictions will adopt this well-reasoned decision.

PMLaw and Alexander Holburn would like to thank our speakers and all of our guests, who contributed to the exchange of useful information throughout the day. Special thanks also goes to the incredibly talented and hard-working PMLaw support staff – Rosa Borrelli, Veronica Rodericks, and Mary Vrbos – without whom the conference would have been a practical impossibility.