Air-fair

• This week at the SCC: flight compensation and more

• Opposing a family member’s MAiD assessment

• Elon’s litigation funding venture

• And a risky side hustle for teachers

SCC

On the Supreme Court’s docket this week

Airlines v. Passenger Rights

IATA v. Canadian Transportation Agency

Yesterday, a group of airlines argued that Canada’s flight compensation regulations violate an international treaty. If their appeal succeeds, international travellers can wave goodbye to Canada’s fixed compensation for flight cancellations, long delays, and lost baggage.

The argument: Canada is a signatory to the Montreal Convention, which has uniform rules for international air travel covering passenger compensation. It says countries can’t supplement those rules. Well, at least that’s how the airlines want us to read Article 29:

But the Federal Court of Appeal didn’t see it that way. The Court said there’s a difference between an “action for damages” and the fixed payments Canada forces airlines to cough up as compensation for flight disruptions. The Court followed the European Court of Justice, which has consistently upheld similar rules in the EU (although not without criticism).

Editor’s take: This one could go either way, but I’m leaning towards a win for passenger rights. I don’t find the distinction between “damages” and statutory compensation for inconvenience very compelling. But most of the countries bound by the Montreal Convention seem to interpret it the same way — the Federal Court of Appeal said 73 out of 135 signatories have a fixed compensation scheme somewhat similar to Canada’s.

• “Just because all the other countries are jumping off the bridge doesn’t mean the bridge was made for jumping” – International Airlines (probably)

Criminal negligence driving prohibitions

R. v. Wolfe

Today, a man convicted of criminal negligence causing death is arguing that he shouldn’t have been prohibited from driving.

Context: Criminal negligence and dangerous driving are somewhat interchangeable when it comes to reckless vehicle operation. And until 2018, the Criminal Code reinforced that view — judges were allowed to impose a driving prohibition for criminal negligence offences.

But the federal government made sweeping changes to the Code’s driving prohibitions in 2018. They upped the maximum sentence for dangerous driving causing death (removing one of the main justifications for charging criminal negligence instead of dangerous driving). And they removed criminal negligence from the list of offences eligible for a driving prohibition.

So, what’s the issue? The Saskatchewan Court of Appeal said removing criminal negligence from the list isn’t what it looks like — courts can still sentence offenders to a driving prohibition.

• The Courts of Appeal in Ontario and British Columbia came to the opposite conclusion — relying on Parliament’s relatively unambiguous amendments to the Code.

Editor’s take: My money is on Mr. Wolfe ridding himself of his driving prohibition. The statutory language is clear enough that I wouldn’t be surprised if the Court issued its decision from the bench.

What else is happening at the SCC?

• Tomorrow, the Court is hearing a criminal appeal as of right.

• Thursday, the Court is releasing a decision about Indigenous self-government and the Charter. The Court has been working on the much-anticipated decision for almost 14 months.

HEARSAY ROUNDUP

Canadiana

🩺 Justice Feasby of the Alberta Court of King’s Bench held that a daughter can go through with medical assistance in dying over her father’s objections. The outcome is similar to a Nova Scotia case from 2020, but the reasoning is different.

• As a general rule, Justice Feasby said courts can’t review individual MAiD assessments: “Parliament has put its trust in doctors and nurse practitioners and it is not for this Court to second guess that choice.”

• But he said courts do have the power to review administrative decisions — like decisions made by Alberta Health Services about how to apply its MAiD policy. He said the father had standing to argue that Alberta Health Services improperly selected the doctors who approved his daughter’s death.

• The father ultimately lost on the test for granting an injunction. Justice Feasby said the daughter’s autonomy outweighed her father’s interest in intervening.

📝 British Columbia reached a draft agreement in the longstanding Aboriginal title dispute over Haida Gwaii, settling the claim in advance of trial. But some are concerned about potential holes in the province’s plan to contract its way through an Aboriginal title claim. Cassels wrote a blog post noting that the government’s announcement seems to guarantee the same land to both the Haida First Nation and private landowners.

🎨 A group of parents sued a Quebec high school teacher for $1.6M after the teacher allegedly posted student artwork online and listed it for sale.

🤒 Prince Edward Island is introducing paid sick leave for private sector employees. That’s a win over provinces like Ontario, where the government only guarantees employees three unpaid days for illness.

💬 Ushering in a celebrity-backed form of litigation funding, Elon Musk agreed to pay a Canadian doctor’s legal bills. He pitched it as support for freedom of speech because the doctor’s COVID-19 tweets landed her in hot water. But critics were quick to point out the procedural history that led to the doctor owing $300,000 in costs:

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