It’s not up in the air: class action runs out of fuel
Spencer v. Transat A.T. Inc., 2022 BCSC 2256 is a recent example of the BC Supreme Court exercising its gatekeeper role to screen out proposed class actions that are bound to fail. The court dismissed the plaintiff’s certification application because it failed to disclose a cause of action, and then dismissed the plaintiff’s application to amend her pleadings because her claims were time-barred. For both decisions, the court relied upon the Montreal Convention, which the court found to be a complete code regarding the liability of international air carriers. This case illustrates the powerful role that an attack on the pleadings can play in defending a proposed class proceeding, and also highlights the role that international conventions can play in circumscribing domestic class proceedings.
The plaintiff alleged that the defendant airlines misrepresented that her flight from Kelowna to Cancun was non-stop, when in reality it included a fuel stop. She sought to represent a class of persons who bought direct flights from the defendants and experienced delays as a result of ”premeditated” fuel stops.
The defendant airlines successfully defeated the plaintiff’s certification application. In Spencer v. Transat AT Inc, 2022 BCSC 145 (the “Certification Decision”), the court found that the plaintiff’s claim failed to disclose a cause of action and thus failed to satisfy s. 4(1)(a) of the Class Proceedings Act. Specifically, the court found that the plaintiffhad failed to properly plead a claim under the Montreal Convention, which is a complete code for claims against international air carriers. As a result, the plaintiff’s other pleaded civil and statutory causes of action were struck out, but the court granted her leave to apply to amend her claim in relation to the Montreal Convention.
However, the plaintiff’s amendment application was also dismissed because her claim was time-barred under the Montreal Convention. Section 35 of the Montreal Convention requires any claim for damages against an airline to be brought within two years of the relevant flight, failing which the claim is extinguished. While the plaintiff had started an action against the defendant airlines within six months of her flight, she had not pleaded a claim under the Montreal Convention until after the two-year period expired.
The plaintiff argued that the chambers judge had discretion under the BC Limitation Act to allow her claim to proceed despite the expiry of the applicable limitation period. The plaintiff also argued that she had advanced all material facts necessary to sustain such a claim under the Montreal Convention in the earlier version of her pleading. The court rejected both arguments: s. 3 of the Limitation Act makes it clear that the Act does not apply to a claim that is subject to a limitation period imposed by an “international convention or treaty that is adopted by an Act.”
In the result, the claim under the Montreal Convention was extinguished, and her application to amend her pleadings was dismissed.
 Convention for the Unification of Certain Rules for International Carriage by Air (1999), being schedule VI of the Carriage by Air Act, RSC 1986, c. C-26.