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. v. JETBLUE AIRWAYS CORPORAT, 2022 FCA 211

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: A . 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 ? B . 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? C . 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 theMinister’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 reliefsought at paragraph 154 of their Memorandum of Fact and Law, the appellants challenge the validity of the impugned provisions of theRegulations (and in particular,

section 8 of these Regulations). It is in the course of this challenge that they question the validity of theDirection, because the Direction is crucial to the validity of

section 8 of the Regulations at least with respect to tarmac delays of less thanthree 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 isnecessary to determine the "“essential nature or character”" of a claim to decide whether the Federal Court (or the Federal Court ofAppeal) has jurisdiction over it. Quoting from Domtar Inc. v.

Canada (Attorney General), 2009 FCA 218 (at para. 28), the SupremeCourt went on to write that the essential nature of a claim will be determined on "“a realistic appreciation of the practical result soughtby the claimant”". [27] The Attorney General rightly acknowledges that this Court must have jurisdiction to consider the legality of the Direction, to theextent 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 mostimpractical and inimical to the principle of access to justice to require the appellants to first challenge the Direction before the FederalCourt by application for judicial review before challenging

section 8 of the Regulations in a parallel appeal pursuant to

section 41 of theCTA. 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, (SCC), [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 validityof

section 8 of the Regulations, and must therefore be able to determine whether the Direction that underpins it is intra vires section86.11 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 ofProfessor Dempsey dated March 30, 2020 filed by the appellants.

More particularly, the Attorney General asked this Court to strike outparagraphs 47, 59 to 91 and 115 of Professor Mendes de Leon’s affidavit, and paragraphs 28 to 41 of Professor Dempsey’s affidavit. In anutshell, the Attorney General argues that these paragraphs of the two affidavits are inadmissible because they provide legal opinionswith respect to the

interpretation of the Convention, an issue that is at the very core of the present appeal.

Moreover, in the AttorneyGeneral’s view, such legal opinions involve issues of international law, which are not matters of fact but rather matters of law of whichCanadian 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, asopposed to questions of foreign law, are involved: International Air Transport Association v.

Canada (Transportation Agency), 2020FCA 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 themerits. [31] Before ruling on this motion, it is worth recalling that the Attorney General had previously been granted leave to introduce expertevidence on the law and practice applicable in certain foreign states with respect to air passengers’ rights. The Attorney General hadargued that such evidence was relevant because the practice of State parties is a recognized means of interpreting a treaty such as theMontreal Convention.

Justice Rennie agreed with the Attorney General, recognizing that expert evidence is the only permissible meansby 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 theliability of air carriers to passengers in respect of flight delays, flight cancellations and denial of boarding. This

section is notcontroversial, as it clearly qualifies as evidence on foreign law. The only paragraph of that

section to which the Attorney General objectsis 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 thebasis that the Court departed from its judicial role and in effect amended Regulation (EC) No. 261/2004 of the European Parliament andof the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of deniedboarding and of cancellation or long delay of flights, and repealing Regulation (EC) No 295/91 [2004] OJ, L 46/01) (Regulation261/2004) by creating a right to non-compensatory payments for flight delays.

I will say more on that decision when dealing with themerits 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 thatwhether EU Regulation 261 is in the application of the Montreal Convention requires him to opine on whether that Regulation is aimedat giving effect to the EU’s treaty obligations under the Montreal Convention (at para. 59). After providing the context in whichRegulation 261/2004 was adopted and examining Regulation 261/2004 itself, Professor Mendes de Leon offers the followingconclusions: 71.

In my opinion, it is apparent that Regulation 261 was intended to address matters not governed by the MontrealConvention, 1999, and therefore was not adopted in order to give effect to the EU’s treaty obligations thereunder. Asexplained above in this Affidavit, in the Sturgeon case the ECJ controversially extended the obligation to providecompensation 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 itsdomestic law via amendments to the CAA (s.2(2.1)) is at the heart of this appeal. The appellants have advanced a number of argumentsin 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 MontrealConvention as incorporated in Canadian law. In a similar fashion, they have also submitted that

section 86.11 must be construed as notauthorizing the adoption of regulations that would be inconsistent with the Montreal Convention, since Parliament must be presumed tolegislate in a manner compatible with Canada’s international obligations. The appellants do not dispute that the

interpretation of theMontreal 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 thelimit of liability set forth in the Convention and ignore the exclusion of liability of the Convention. If there is no inconsistency, theRegulations are not ultra vires since they would fall within the regulation-making authority of

section 86.11 of the CTA. At least to thatextent, 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 andcourts will take judicial notice of it. Opinions on matters of law are therefore not admissible, since it is for the court to decide questionsof law.

Although affidavit evidence must generally be confined to facts that are within the deponent’s personal knowledge (Rule 81(1) ofthe Federal Courts Rules), a party will exceptionally be allowed to adduce expert opinion on questions of fact when it meets somerequirements. [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, unlessotherwise 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 atpara. 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 easyanswer in Canadian law and which has been the subject of varied treatment in the jurisprudence. The appellants submit that there is norule according to which expert evidence on international law is inadmissible per se.

Courts may take judicial notice of international lawthat is incorporated into Canadian law, but it is argued that courts may also receive and rely on expert evidence on international lawwhere 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 oflaw, that Canadian courts should take judicial notice of it, and that evidence purporting to give a legal opinion on the

interpretation orapplication of an international convention is inadmissible, "“especially when this is a central issue the Court has to resolve to dispose of acase”" (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 thathave been incorporated into Canadian law.

I leave aside for the purpose of this discussion international conventions and treaties that havenot been implemented by Canadian (federal or provincial) statutes, since they are not part of Canadian law. There is no need to considerhow an international instrument that Canada has ratified but not yet implemented ought to be brought into evidence given that theMontreal 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 expertopinion.

First of all, international law is in many respects domestic law. I appreciate that Canada, unlike other legal systems like that ofthe United States, is a dualist system to the extent that rules of international law must be incorporated or adopted into the domestic legalorder in order to be applied by domestic courts. This is true, however, only with respect to international treaties.

Following the commonlaw rule of adoption, it has long been recognized that prohibitive rules of customary international law forms part of Canadian law in theabsence of conflicting legislation: see Hape at paras. 36-39 and the cases referred to. As for treaties, once incorporated, they areCanadian law for all intents and purposes.

Accordingly, the fact that Canada is a dualist state should not be overblown and is not criticalto 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 presumptionthat domestic law will be interpreted so as to conform to Canadian international obligations.

As noted by Gibran van Ert ("“TheAdmissibility of International Legal Evidence” "(2005) 84 C.B.R. 31, at p. 38 [van Ert]), there is no presumption that Canadian lawrespects the requirements of the law of foreign countries, since these laws do not bind Canada. On the contrary, customary internationallaw 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 expertopinion evidence.

The leading authority on that question is the decision of the Supreme Court of Canada in R. v. Mohan, (SCC), [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, theCourt added a second step, namely the balancing of the potential risks and the benefits of admitting the evidence, in order to decidewhether the potential benefits outweigh the risks: White Burgess Langille Inman v.

Abbott and Haliburton Co., 2015 SCC 23, [2015] 2S.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 Burgesswere not dealing with expert opinion on questions of law but rather on questions of fact.

It could be argued, therefore, that the criteria setforth in these decisions were not meant to apply to expert opinions on questions of law, and thus cannot be relied upon to justify theintroduction 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 theCourt’s expertise on matters of law. Even if necessity should not be judged "“by too strict a standard”" (Mohan at p. 23), the expertopinion must still bring an expertise that is outside the purview of a judge’s skills and knowledge. This is clearly the case when theapplication 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 becontrasted with those cases where the legal issue, albeit novel or complex, does not require any particular expertise beyond that expectedfrom 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 inCanada (Board of Internal Economy) v.

Canada (Attorney General), 2017 FCA 43 (at para. 18) [Board of Internal Economy], "“[t]his isprecisely 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 asexpert 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 223at paras. 10-11; Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ontario: LexisNexis, 2014) at paras.12.155 and 12.156. [53] As for IATA’s argument that expert evidence can be adduced when the principles of international law are contested, controversial oremerging, I find it totally unpersuasive. This has never been the test to accept expert evidence, and indeed IATA cites no authority insupport of that new principle. A disagreement between parties on the proper

interpretation of the law (be it constitutional law, civil law,criminal law or international law) cannot be the test to determine the admissibility of expert opinion evidence. That would amount to anusurpation of the role of the judge.

As van Ert aptly remarked in his previously cited article: While it is no doubt true that a scholar who has long studied a particular question of law may be more knowledgeable aboutit than a trial judge at the outset of a hearing, our adversarial legal system is predicated upon the conviction that a qualifiedjudge, assisted by learned counsel presenting competing views and acting for parties with a real interest in the outcome, andprotected (if all else fails) by the possibility of reversal on appeal, is capable of correctly resolving any legal controversy.

Ifwe begin to doubt this proposition for international law, on the ground that it may be unfamiliar to many judges, why shouldwe not also doubt it for other lesser-known areas of law? (at p. 41) [54] The case law has not been consistent and is not free from ambiguity in its treatment of expert opinion evidence as it relates tointernational law. By and large, however, I think it is fair to say that the jurisprudence has moved towards the exclusion of suchevidence.

It is noteworthy that the appellants, despite stating that Canadian courts have, "“on numerous occasions”" (Appellants’Responding Written Representations at para. 41), received and relied on expert evidence on international law, have only been able toprovide two cases where expert evidence on issues of international law has been explicitly ruled admissible: see Holding Tusculum B.V.c. S.A. Louis Dreyfus & Cie, 2006 QCCS 2827 at para. 16; Fédération des travailleurs du Québec (FTQ – Construction) c. Procureuregénérale du Québec, 2018 QCCS 4548 at para. 20.

These two trial court decisions did not discuss the issue thoroughly, and the samecourt expressly refused to follow the second one of these decisions in a more recent case: Fédération des policiers et policièresmunicipaux du Québec c. Procureure générale du Québec, 2020 QCCS 2496 at para. 22. [55] The appellants have also referred the Court to a few cases where expert evidence on international law was adduced: see Romania(State) v. Cheng, (NS SC), aff'd (NS CA); Amaratunga v. Northwest Atlantic FisheriesOrganization, 2010 NSSC 346; 2011 NSCA 73; Saskatchewan v.

Saskatchewan Federation of Labour, 2012 SKQB 62; 2013 SKCA 43;2015 SCC 4, [2015] 1 S.C.R. 245 (Saskatchewan Federation of Labour); Najafi v. Canada (Public Safety and Emergency Preparedness),2013 FC 876; 2014 FCA 262; [2015] 4 F.C.R. 162; Tracy v. The Iranian Ministry of Information and Security, 2016 ONSC 3759. Innone of these cases was the admissibility of the expert evidence discussed by the court.

Moreover, the expert evidence was only brieflyreferred to in all of these cases, sometimes just to acknowledge that it was filed; in the two cases that reached the Supreme Court, therewas no mention at all of the expert affidavit in one and a mere parenthesis ("“See also affidavit of …”") in the other (SaskatchewanFederation of Labour at para. 65). Needless to say, the decisions on whether or not to file certain evidence to challenge the admissibilityof each other’s evidence are often tactical and made on a case-by-case basis, and do not amount to rulings as to the admissibility of suchevidence.

It is well established that courts will not generally raise proprio motu an objection to the admissibility of evidence: Café CimoInc. v. Abruzzo Italian Imports Inc., 2014 FC 810 at para. 6; Mallet v.

Administrator of the Motor Vehicle Accident Claims Act, 2002ABCA 297 at paras. 57-58. [56] On the other hand, expert evidence on international law has been rejected by this Court and the British Columbia Court of Appeal.In Board of Internal Economy, this Court struck out a law professor’s affidavit purporting to show that parliamentary expenses falloutside the scope of the protection afforded to parliamentary privilege.

In support of that proposition, the law professor relied on theexperience of other Commonwealth countries, which in his view demonstrated that the administration of parliamentary expenses does notfall within the common law concept of parliamentary privilege.

As pointed out by the appellants, while it is no doubt true that the issueof admissibility of expert evidence on international law was not squarely addressed, it remains that the affidavit was riddled withopinions relating to an allegedly "“international global standard of constitutional law”" (Board of Internal Economy at paras. 6 and 21).The Court came to the conclusion that the affidavit was not a mere factual brief providing neutral information on comparative andforeign law, as argued by the appellants in that case, but was more in the nature of a legal opinion that was meant to advocate for therestrictive

interpretation of parliamentary privilege advanced by the appellants. As the Court stated: 23. It cannot credibly be contended that the St-Hilaire affidavit is in the nature of a factual brief providing neutralinformation with respect to the historical development of the parliamentary privilege, and on comparative and foreign law.

Itreads like a legal opinion: it draws from Canadian and foreign sources to offer a conclusion which happens to support therespondent MPs’ argument… [57] That decision is consistent with the notion that an expert cannot opine on a question of law (which must necessarily includequestions of international law) to be decided by the Court, especially when that question is at the heart of the determination to be made toresolve the dispute between the parties: see the case law cited in Board of Internal Economy at para. 18.

The British Columbia Court ofAppeal confirmed as much when called upon to deal explicitly with expert evidence pertaining to international law. In R. v.Appulonappa, 2014 BCCA 163, it stated (at para. 62):

Finally, with respect to expert evidence, the respondents called Professor Dauvergne, who testified to issues of refugee lawand policy. Mr. Dandurand, who was called by the Crown, gave evidence as an expert in human smuggling as atransnational crime. I agree with the respondents that, to the extent that both experts strayed into providing opinions on theinterpretation and application of international law and s. 117 of the IRPA, their testimony was not properly admissible asthese were questions of law for the court.

I accordingly limit my consideration of their evidence to factual matters. [58] More recently, a majority of this Court noted in obiter that the parties do not need to file experts’ reports to establish internationallaw, because the Court can take judicial notice of said law: Turp v. Canada (Foreign Affairs), 2018 FCA 133 at para. 82. In coming tothat conclusion, the Court relied on R. v. The Ship" “North""”", (1906) (SCC), 37 S.C.R. 385 and Jose Pereira E Hijos,S.A. v.

Canada (Attorney General), (FC), [1997] 2 FC 84 [Jose Pereira], and also on the decision of the Scottish HighCourt of Justiciary in Lord Advocate’s Reference No. 1, [2001] ScotHC 15. [59] There may admittedly be few cases where Canadian courts have explicitly stated that they can take judicial notice of internationallaw. There are, however, a number of Supreme Court cases where customary and conventional international norms were consideredwithout any reference to supporting expert evidence. In my view, this speaks volumes as to the propriety of doing so: see, for example, R.v. Malmo-Levine; R. v.

Caine, 2003 SCC 74 , [2003] 3 S.C.R. 571; Suresh v. Canada (Minister of Citizenship and Immigration),2002 SCC 1 , [2002] 1 S.C.R. 3 [Suresh]; United States v. Burns, 2001 SCC 7 , [2001] 1 S.C.R. 283; Ordon Estate v.Grail, (SCC), [1998] 3 S.C.R. 437; Re Canada Labour Code, (SCC), [1992] 2 S.C.R. 50; SlaightCommunications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038; R. v.

Crown Zellerbach Canada Ltd., (SCC), [1988] 1 S.C.R. 401; Reference re Newfoundland Continental Shelf, (SCC), [1984] 1 S.C.R. 86; Reference Re:Offshore Mineral Rights, (SCC), [1967] S.C.R. 792; The Municipality of the City and County of Saint-John et al. v.Fraser-Brace Overseas Corporation et al., (SCC), [1958] S.C.R. 263. [60] Even more to the point are those cases where Canadian courts interpreted various provisions of international treaties ratified andimplemented by Canada without resorting to any expert evidence. In Pan American World Airways Inc. v.

The Queen et al., , [1979] 2 F.C. 34 at p. 274-275, aff’d at (FCA) and (SCC), for example, the Federal Courtfound that expert evidence as to the proper

interpretation of the Convention on International Civil Aviation, 7 December 1944, 15 UNTS295 [Chicago Convention] was inadmissible. Interestingly, the Court nevertheless agreed to consider it on the assumption that counselwould have adopted it as argument. Similarly, the Supreme Court applied two provisions of the Vienna Convention on the Law ofTreaties, 23 May 1969, 1155 U.N.T.S. 331 [Vienna Convention] without resorting to any expert evidence: see Yugraneft Corp. v. RexxManagement Corp., 2010 SCC 19, [2010] 1 S.C.R. 649 at paras. 19 and 21 [Yugraneft]; Office of the Children’s Lawyer v.

Balev, 2018SCC 16 , [2018] 1 S.C.R. 398 at para. 35. Especially relevant for our purposes is the decision of the Supreme Court inThibodeau v. Air Canada, 2014 SCC 67 , [2014] 3 S.C.R. 340 [Thibodeau], where

Article 29 and other provisions of theMontreal Convention were interpreted without the need for any expert evidence. [61] Counsel for the appellants argued that the Attorney General has adduced expert evidence in a number of cases, and should thereforebe estopped from arguing that expert evidence on international law is inadmissible. In support of their argument, they referred the Courtto a number of cases where international law experts have been called by the Attorney General, on his own motion or otherwise, toprovide reports or affidavit evidence on various issues of international law. Of course, I agree with the appellants that the AttorneyGeneral should strive for consistency in the

interpretation of the laws upon which he relies in the various courts of the country in thefulfilment of his responsibilities. [62] The appellants’ argument is essentially that having led expert evidence of international law in other cases, the Attorney General isestopped from objecting to the introduction of similar evidence by other parties. While I agree that the Attorney General stands in aunique position before the Courts, as a practical matter it is not possible to compare what the Attorney General has done in any othercase and what is being done in the case before this Court.

Counsel make evidentiary decisions on the basis of the facts upon which a caseturns. It is not for the Court to audit the facts of every case in which an issue has arisen to determine if the Attorney General is beingconsistent in the treatment of that same issue. [63] Moreover, even if practice was relevant, the decisions to file evidence and to raise objections to the admissibility of evidence aremade on a case-by-case basis, very often for tactical purposes. Each case raises different issues and requires judges to make differentjudgment calls on all sorts of issues including the type of evidence to be admitted.

In some cases, for example, the evidence was of ahistorical nature (R. v. Finta, (SCC), [1994] 1 S.C.R. 701, at p. 795), related to the preparatory work of a treaty(Québec (Ministre de la Justice) c. Canada (Ministre de la Justice), (QC CA)), or consisted of expert reportsappended to a factum in a reference (Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217).

A sample of adozen cases over the course of thirty years is certainly not sufficient to establish any kind of practice, especially in light of the othernumerous cases where the Attorney General chose not to file expert evidence on international law: see, for example, Kazemi Estate v.Islamic Republic of Iran, 2014 SCC 62 , [2014] 3 S.C.R. 176; Febles v.

Canada (Citizenship and Immigration), 2014 SCC 68,[2014] 3 S.C.R. 431 [Febles]; Hape; Suresh. [64] For all of the above reasons, I am therefore of the view that courts ought to take judicial notice of customary international law and oftreaties that have been ratified and implemented in Canadian law. As the Supreme Court recognized in Nevsun Resources Ltd. v. Araya,2020 SCC 5 (at paras. 94-98), customary international law is to be treated as the law of Canada, and as such must be judicially noticedwithout the need of any expert evidence.

I see no reason, either principled or practical, to distinguish between customary internationallaw and treaties that have been implemented in Canadian law. For all intents and purposes, both are incorporated into Canadian law andjudges are expected to treat them as law, not as fact. The trend of the case law to which I have referred in the preceding paragraphsclearly points in that direction.

Indeed, that trend can be traced back as far as the decision of the Federal Court in Jose Pereira, where oneof the arguments put forward by the plaintiffs was that regulations adopted pursuant to the Coastal Fisheries Protection Act, R.S.C.1985, c. C-33 were beyond the authority of the Governor in Council.

Ruling on a motion to strike portions of the statements of claimfiled by the defendants, Justice MacKay first summarized the principles concerning the application of international law in our courts, andthen went on with the issue of pleadings as it relates to international law: That issue [the vires of the Regulations], one fundamental to these proceedings, may be raised without reference in the

pleadings or particulars to specific international treaties or conventions which, in so far as they are considered a source of law, will be applied in the action only if they are incorporated in Canadian domestic law by legislation specifically so providing.

To the extent that international conventions or treaties are considered authority for international law principles, it is unnecessary to plead them specifically, in the same way that it is unnecessary to plead other authority, e.g., jurisprudence or legislation, and such pleading is not of facts, the essence of pleading, but of law, which is not to be pleaded … (at p. 101) (emphasis added) [ 65 ] Expert evidence on international law, just like expert evidence on any issue of domestic law, should therefore not be countenanced.

Counsel should make submissions on international law themselves, without resorting to the added credibility of an expert. Of course, a learned

article canvassing some of the legal issues in an expert opinion could, if published, be put before the Court, along with case law and other types of legal sources.

But international law should definitely not be pleaded as a fact, to be proven by way of affidavit or testimonial evidence, especially when the objective is to provide legal conclusions on the very issue that is at the core of the dispute between the parties. [ 66 ] On the basis of that principle, I agree with the Attorney General that paragraphs 47, 59 to 91 and 115 of Professor Mendes de Leon’s affidavit, and paragraphs 28 to 41 of Professor Dempsey’s affidavit should be struck out.

Contrary to the appellants’ submission, they address issues that are matters of argument to be decided by the judge, and not matters of fact. The normative content of international law falls within the bailiwick of the court’s exclusive jurisdiction. [ 67 ] It is one thing to adduce evidence on foreign legislation and decisions as Professor Correia does in his affidavit, and it is another to opine on the consistency of that foreign law with the Montreal Convention , thereby at least indirectly interpreting the scope of the Convention and of the exclusivity principle contained therein.

When Professors Mendes de Leon and Dempsey cross that line, they usurp the role of the Court because this is precisely the question that we are being asked to adjudicate. It is ultimately for the Court to determine whether the state practice adduced by the parties through their expert is or is not in conformity with the Montreal Convention , on the basis of its own

interpretation of the ground covered by that Convention and of its

Article 29. [ 68 ] The evidence of foreign law introduced by Professor Correia will obviously not relieve the Attorney General of establishing that it amounts to " “state practice” " under the Vienna Convention . According to

Section 38 of the Statute of the International Court of Justice (26 June 1945, Can. T.S. 1945 No. 7), the main sources of international law are international conventions, international custom, general principles of law and, as subsidiary means for determining the law, judicial decisions and the writings of pre-eminent authors. State practice is not a source of international law and does not create, per se , international law obligations. It is rather factual, and it can be used as an aid in interpreting a treaty, pursuant to paragraph 31(3)(

b) of the Vienna Convention on the Law of Treaties (23 May 1969, Can. T.S. 1980 No. 37). To qualify as " “state practice” " , however, the foreign law relied upon must be " “in the application of” " and " “consistent with” " the treaty to which it relates.

To the extent that the Attorney General intends to show that the State parties to the Montreal Convention do not consider that this Convention bars them from establishing air passenger protections similar to those included in the Canadian regime, he will have to demonstrate that the foreign law (a fact) is consistent with and in the application of the Convention , a matter of legal argument. [ 69 ] Finally, the appellants’ argument that they are entitled to challenge whether some or all of the foreign law the Attorney General wishes to rely on constitutes relevant state practice that can serve to interpret the Montreal Convention , must similarly be rejected.

First of all, there is no doubt that the appellants are free to make that counter argument, but this is a matter of law and not of fact. This should be done by counsel, and not by way of expert evidence introduced by affidavit. Moreover, this submission is somewhat circular. State practice can only be characterized as incompatible with a convention once that convention has been interpreted. One cannot short-circuit this logical reasoning by opining from the outset that the foreign law is or is not in the application or in conformity with the Convention .

In doing so, the appellants’ experts pronounce on the consistency of the foreign law with the Montreal Convention on the basis of their own

interpretation of that convention, which is precisely what must be demonstrated. Once again, this is a matter of law for this Court to decide and not an issue of fact upon which expert evidence is required. [ 70 ] I will therefore proceed without taking into account the above-mentioned paragraphs of the affidavits of Professors Dempsey and Mendes de Leon. The expert evidence submitted by Professor Elmar M. Giemulla on behalf of the Attorney General, which was filed with the express purpose of responding to the expert affidavits of Professor Mendes de Leon and Professor Dempsey, will similarly be disregarded.

I hasten to say, however, that counsel were free to make similar arguments in their oral presentations, and that the Court did consider all of the legal arguments as such. IV. Standard of review [ 71 ] The appellants do not challenge the validity of

section 86.11 of the CTA , nor of any other of its provisions. The core of their challenges is that the minimum compensation scheme set out in the Regulations , insofar as it applies to international carriage, is ultra vires of the enabling provision found in

section 86.11. Challenging the vires of a regulation is certainly a question of law. Indeed,

section 41 of the CTA provides for an appeal from the Agency to this Court, with leave, only on questions of law and jurisdiction. [ 72 ] A statutory right to appeal signals Parliament’s intent for the appellate standards to apply, thereby rebutting the presumption of reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653 at para. 17 [ Vavilov ]. On appeal, questions of law attract the correctness standard: Vavilov at paras. 36-37 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 , [2019] 4 S.C.R. 845 at para. 35 ; Ward v.

Québec ( Commission des droits de la personne et des droits de la jeunesse ) , 2021 SCC 43 , 463 D.L.R. (4th) 567 at para. 24 ; Canadian Pacific Railway Company v. Canada (Transportation Agency) , 2021 FCA 69 , [2021] CarswellNat 947 at para. 41 . The task is therefore to interpret

section 86.11 of the CTA to ascertain the statutory grant of power Parliament intended to afford the Agency, and then to interpret the text, context and purpose of the impugned provisions of the Regulations with a view to determining whether they fall within the purview of what Parliament authorized when it enacted

section 86.11.

V. Analysis A. Is the minimum compensation to passengers required by the Regulations in thecase of delay, cancellation, denial of boarding and lost or damaged baggage, whenapplied to international carriage by air, authorized by subparagraph 86.11(b)(

i) of theCTA and compatible with the Montreal Convention? [73] Relying on the presumptions of compliance with international law and of legislative coherence, the appellants submit that section86.11 can and should be construed as only authorizing regulations that are consistent with Canada’s obligation under international law. [74] There is no doubt that Parliament must be presumed not to have intended to adopt legislation inconsistent with Canada’sinternational obligations under treaty or customary international law: see, for example, R. v.

Appulonappa, 2015 SCC 59 , [2015] 3 S.C.R. 754, 478 N.R. 3 at para. 40; Hape at paras. 53-54; R. Sullivan, The Construction of Statutes, 6th ed. (Markham, ON:LexisNexis, 2014), paras. 18.5-18.7 (Sullivan). The Supreme Court explicitly reiterated this principle in the context of the MontrealConvention: see Thibodeau at paras. 6 and 113. In the absence of clear language to the contrary, a statute must be construed as onlyauthorizing subordinate legislation that is respectful of Canada’s international obligations. [75] The appellants also submit that the scope of the Agency’s regulation-making authority under

section 86.11 of the CTA is furtherconstrained by the presumption of legislative coherence. Pursuant to that well established presumption, overlapping provisions fromdifferent statutes must be interpreted so as to avoid conflict wherever this is possible: Thibodeau at paras. 89, 93 and 99; Barreau duQuébec v. Quebec (Attorney General), 2017 SCC 56, 404 D.L.R. (4th) 201 at para. 73; Friends of the Oldman River Society v. Canada(Minister of Transport), (SCC), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1 at p. 38 [Oldman River]; P.-A. Côté, The

Interpretation of Legislation in Canada, 4th ed. (Toronto: Thomson Reuters, 2011), at p. 365. What is true of statutes is also true ofdelegated legislation: regulations can neither conflict with their enabling legislation nor with any other act of the legislature: OldmanRiver, at p. 38; D.J.M. Brown & J.M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters, 2022), at§ 15:61. Since the Montreal Convention has the force of law in Canada as its provisions have been incorporated into Canadian law bysubsection 2(2.2) of the CAA, the appellants argue that Parliament must be presumed not to have authorized the adoption of delegatedlegislation pursuant to

section 86.11 that would be inconsistent with the Montreal Convention. [76] On the basis of these two presumptions, the appellants contend that

section 86.11 of the CTA can and must be construed in a mannerthat is consistent with the Montreal Convention, and that any regulations regarding compensation should apply only to domesticitineraries. In adopting the impugned provisions of the Regulations, which define air carriers’ minimum obligations towards passengersin relation to both domestic and international flights, the appellants are of the view that the Agency went beyond the true scope of theauthority conferred by

section 86.11, when properly interpreted in light of the above-mentioned presumptions. [77] The Attorney General retorts that the interpretative presumptions are of no assistance to the appellants, since they cannot be used toalter the clear language of

section 86.11 which directs the Agency to make regulations that set minimum compensation forinconvenience in the case of delay, cancellation and denial of boarding for both domestic and international flights. To the extent thatthere is a conflict between the Regulations, as mandated by subparagraph 86.11(1)(b)(

i) of the CTA and subsection 2(2.1) of the CAA,which incorporates the Montreal Convention, the former should therefore prevail. [78] At this stage, and before turning to the merits of these arguments, it is worth reproducing

section 86.11 in its entirety: "Regulations — carrier’s obligations towardspassengers " "Règlements — obligations des transporteursaériens envers les passagers ""86.11

(1) The Agency shall, after consulting with theMinister, make regulations in relation to flights to, fromand within Canada, including connecting flights, " "86.11

(1) L’Office prend, après consultation duministre, des règlements relatifs aux vols à destination,en provenance et à l’intérieur du Canada, y compris lesvols de correspondance, pour : ""(

a) respecting the carrier’s obligation to make termsand conditions of carriage and information regardingany recourse available against the carrier, as specified inthe regulations, readily available to passengers inlanguage that is simple, clear and concise; " "

a) régir l’obligation, pour le transporteur, de rendrefacilement accessibles aux passagers en langage simple,clair et concis les conditions de transport — et lesrenseignements sur les recours possibles contre letransporteur — qui sont précisés par règlements; ""(

b) respecting the carrier’s obligations in the case offlight delay, flight cancellation or denial of boarding,including " "

b) régir les obligations du transporteur dans les cas deretard et d’annulation de vols et de refusd’embarquement, notamment : ""(

i) the minimum standards of treatment of passengersthat the carrier is required to meet and the minimumcompensation the carrier is required to pay forinconvenience when the delay, cancellation or denial ofboarding is within the carrier’s control, " "(

i) les normes minimales à respecter quant autraitement des passagers et les indemnités minimalesqu’il doit verser aux passagers pour les inconvénientsqu’ils ont subis, lorsque le retard, l’annulation ou lerefus d’embarquement lui est attribuable, ""(ii) the minimum standards of treatment of passengersthat the carrier is required to meet when the delay,cancellation or denial of boarding is within the carrier’scontrol, but is required for safety purposes, including insituations of mechanical malfunctions, " "(ii) les normes minimales relatives au traitement despassagers que doit respecter le transporteur lorsque leretard, l’annulation ou le refus d’embarquement lui estattribuable, mais est nécessaire par souci de sécurité,notamment en cas de défaillance mécanique, "

" (iii) the carrier’s obligation to ensure that passengers complete their itinerary when the delay, cancellation or denial of boarding is due to situations outside the carrier’s control, such as natural phenomena and security events, and " " (iii) l’obligation, pour le transporteur, de faire en sorte que les passagers puissent effectuer l’itinéraire prévu lorsque le retard, l’annulation ou le refus d’embarquement est attribuable à une situation indépendante de sa volonté, notamment un phénomène naturel ou un événement lié à la sécurité, " " (iv) the carrier’s obligation to provide timely information and assistance to passengers; " " (iv) l’obligation, pour le transporteur, de fournir des renseignements et de l’assistance en temps opportun aux passagers; " " (

c) prescribing the minimum compensation for lost or damaged baggage that the carrier is required to pay; " "

c) prévoir les indemnités minimales à verser par le transporteur aux passagers en cas de perte ou d’endommagement de bagage; " " (

d) respecting the carrier’s obligation to facilitate the assignment of seats to children under the age of 14 years in close proximity to a parent, guardian or tutor at no additional cost and to make the carrier’s terms and conditions and practices in this respect readily available to passengers; " "

d) régir l’obligation, pour le transporteur, de faciliter l’attribution, aux enfants de moins de quatorze ans, de sièges à proximité d’un parent ou d’un tuteur sans frais supplémentaires et de rendre facilement accessibles aux passagers ses conditions de transport et pratiques à cet égard; " " (

e) requiring the carrier to establish terms and conditions of carriage with regard to the transportation of musical instruments; " "

e) exiger du transporteur qu’il élabore des conditions de transport applicables au transport d’instruments de musique; " " (

f) respecting the carrier’s obligations in the case of tarmac delays over three hours, including the obligation to provide timely information and assistance to passengers, as well as the minimum standards of treatment of passengers that the carrier is required to meet; and " "

f) régir les obligations du transporteur en cas de retard de plus de trois heures sur l’aire de trafic, notamment celle de fournir des renseignements et de l’assistance en temps opportun aux passagers et les normes minimales à respecter quant au traitement des passagers; " " (

g) respecting any of the carrier’s other obligations that the Minister may issue directions on under subsection (2). " "

g) régir toute autre obligation du transporteur sur directives du ministre données en vertu du paragraphe (2). " " Ministerial directions " " Directives ministérielles " "

(2) The Minister may issue directions to the Agency to make a regulation under paragraph (1)(

g) respecting any of the carrier’s other obligations towards passengers. The Agency shall comply with these directions. " "

(2) Le ministre peut donner des directives à l’Office lui demandant de régir par un règlement pris en vertu de l’alinéa

(1) g) toute autre obligation du transporteur envers les passagers. L’Office est tenu de se conformer à ces directives. " " Restriction " " Restriction " "

(3) A person shall not receive compensation from a carrier under regulations made under subsection (1) if that person has already received compensation for the same event under a different passenger rights regime than the one provided for under this Act. " "

(3) Nul ne peut obtenir du transporteur une indemnité au

titre d’un règlement pris en vertu du paragraphe (1) dans le cas où il a déjà été indemnisé pour le même événement dans le cadre d’un autre régime de droits des passagers que celui prévu par la présente loi. " " Obligations deemed to be in tariffs " " Obligations réputées figurer au tarif " "

(4) The carrier’s obligations established by a regulation made under subsection (1) are deemed to form part of the terms and conditions set out in the carrier’s tariffs in so far as the carrier’s tariffs do not provide more advantageous terms and conditions of carriage than those obligations. " "

(4) Les obligations du transporteur prévues par un règlement pris en vertu du paragraphe (1) sont réputées figurer au tarif du transporteur dans la mesure où le tarif ne prévoit pas des conditions de transport plus avantageuses que ces obligations. " [ 79 ] The Attorney General submits that conflicts between subordinate legislation, such as the Regulations , and another statute (i.e. not the enabling statute) should be resolved using the rules for resolving conflicts between statutes. Because

section 86.11 of the CTA is more specific and more recent than subsection 2(2.1) of the CAA , the former should accordingly prevail in case of conflict. In my view, this analogy is not entirely apposite. [ 80 ] It is no doubt true that subsection 2(2.1) of the CAA which generally incorporates the provisions of the Montreal Convention insofar as they relate to " “the rights and liabilities” " of various actors involved in air transportation, is on its face less precise than the detailed obligations and compensation provided for by

section 86.11 of the CTA . Subsection 2(2.1) of the CAA is only meant to be a short hand reference to the various provisions of the Montreal Convention dealing with the rights and liabilities of carriers, passengers and other persons covered by the Convention , not a full-fledged description of these rights and liabilities. For that, one must refer to the Convention itself. And the Convention can hardly be said to be less specific than the CTA . [ 81 ] More importantly, form must not prevail over substance.

What is at stake here is not merely a conflict between a regulation (and, by extension, its enabling statute) and any other statute, as the Attorney General would have it, but between a domestic regulation and an international treaty that has been ratified and incorporated in domestic law. The focus of the inquiry cannot be the implementing legislation, but the treaty itself.

This is clearly not a case of conflict between an enabling statute and another statute. [ 82 ] The real question to be resolved, therefore, is whether the wording of the Regulations is clear enough to prevail over the Convention in the event that a conflict is found between these two legal instruments. To address that question, the ordinary rules of conflict between statutes (or between statute and regulation) cannot be resorted to. [ 83 ] As mentioned earlier, it is a well established principle of statutory

interpretation that legislation is presumed to be in conformity with Canada’s international obligations under treaty or customary international law. For that reason, courts will strive to avoid

constructions of domestic law that would result in violation of those obligations, unless it is unavoidable. To come to that conclusion, the statute must demonstrate " “an unequivocal legislative intent to default on an international obligation” " : Hape at para. 53 . [ 84 ] The Supreme Court expanded on the notion of conflicting legislation in Thibodeau , precisely in a context involving the Montreal Convention .

In that case, the Supreme Court made it clear that a conflict will be found when two provisions are " “incapable of standing together” " , and when " “the application of one law excludes the application of the other” " : Thibodeau at paras. 94 and 96 . The Court went on to say that overlapping provisions do not necessarily conflict, so long as they can both apply, unless there is evidence to the effect that one of the provisions was meant to provide an exhaustive declaration of the applicable law: Thibodeau at para. 98 . Since

interpretations which result in conflict should be eschewed as much as possible unless it is unavoidable, courts will be " “slow to find that broadly worded provisions were intended to be an exhaustive declaration of the applicable law where the result of that conclusion creates rather than avoids conflict” " : Thibodeau at para. 99 . [ 85 ] Applying these principles, the majority in Thibodeau found that the Montreal Convention does not permit an award of damages for breach of language rights during international carriage by air, and that to hold otherwise would be both contrary to the text and purpose of that convention, and would be inconsistent with a " “strong international consensus” " concerning its scope and effect: Thibodeau at para. 6 .

Accordingly, the majority interpreted the general remedial power under subsection 77(4) of the Official Languages Act , R.S.C. 1985, c. 31 (the OLA), as not authorizing an award of damages so as to avoid a conflict that was not inescapable.

The Supreme Court thereby confirmed the decision of this Court that there is no conflict between the two regimes, since a court must not award damages in circumstances to which the Montreal Convention applies when determining whether a remedy is " “appropriate and just” " under subsection 77(4) of the OLA. [ 86 ] The appellants submit that the same reasoning should be followed in the case at bar, and that the Regulations should be interpreted so as not to apply to international flights, thereby avoiding any conflict with the rules governing damage liability of international air carriers under the Montreal Convention .

The Attorney General disputes this approach and claims that it is inapplicable in the context of the present case, because the language of subsection 86.11(1) is prescriptive and specific and does not allow for an

interpretation that would eschew a conflict if there is indeed a discrepancy between the Montreal Convention and the Regulations . According to the Attorney General, Parliament could not have made its intent clearer (by using the word " “shall” " ) when it required the Agency to make regulations that set minimum compensation for inconvenience in the case of delay, cancellation and denial of boarding for both domestic and international flights: CTA at

section 86.11 ; Memorandum of Fact and Law of the Attorney General at para. 40. There is therefore no room in his view to read down

section 86.11 along the lines suggested by the appellants. [ 87 ] I do not find this argument entirely convincing. Parliament is presumed not to intend to legislate in breach of Canada’s international law obligations, and this presumption will only be displaced by clear and unequivocal wording. Such is not the case here. Quite to the contrary, subsection 78(1) of the CTA stipulates that the " “powers conferred on the Agency by this Part [Part II - Air Transportation] shall be exercised in accordance with any international agreement, convention or arrangement relating to civil aviation to which Canada is a party” " . That provision appears to have transformed a presumption of statutory

interpretation into an explicit legislative constraint, and it clearly applies to the new regulatory powers conferred on the Agency by

section 86.11, which also falls within

Part II of the CTA . The fact that the Regulations adopted pursuant to that

section are made after consulting with the Minister does not detract from the fact that they are adopted in the exercise of the powers conferred on the Agency by the CTA . In any event, every regulation made by the Agency under the CTA must receive the approval of the Governor in Council: subsection 36(1) of the CTA . Had Parliament intended to authorize the Agency to adopt regulations in breach of the Montreal Convention ,

section 86.11 could have explicitly exempted the Agency from the constraint of

section 78. [ 88 ] The Agency appears to share the vi

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