Flight Path | Episode 3 | Passenger Rights and the Montreal Convention

In this episode we will explore Passenger Rights in the aviation industry, with host Aron Dindol and Rob Lawson KC in London joined by Chris Bakker a partner in our Vancouver office and Darcy Beamer-Downie (a member of our International Disputes team) to discuss Regulation 261 in the UK and EU and the impact of the recent Supreme Court of Canada decision dealing with the exclusivity of the Montreal Convention and domestic legislation.

Regulation 261/2004 is over twenty years old now and through various European court decisions, that court has arguably transformed the Regulation beyond what the original European legislature intended.

The unintended consequence is that some countries have perpetuated faulty court reasoning particularly in relation to compensation for delay and in so doing have tipped the balance between airline obligations to their passengers and passenger rights.

The recent Heathrow closure following the substation fire in March 2025 demonstrated the impact on airlines in respect of events beyond their control but nevertheless they are still required to provide passengers with a certain level of care and assistance, which is both costly and not recoverable.

The recent Canadian decision will likely have an adverse impact on airlines bottom line on the one hand and affordability of air travel for passengers on the other. Canada adopted the Montreal Convention in 2001 but it was not until 2019 that Canada brought in uniform legislation in respect of passenger rights and there are currently further proposed passenger regulations on the table that will seek to align Canada passengers regulations more with Regulation 261/2004.

Soon after Canada adopted the 2019 APPR, IATA on behalf of various airlines brought an action in the Canadian Federal court which went all the way up to the Canadian Supreme court. The IATA/airline position was that the APPR conflicts with the exclusivity principle of the Montreal Convention and the APPR regulations are therefore ultra vires the powers of the Canadian Trasport Agency.

The Supreme court disagreed and ruled in October 2024 that there is no conflict with Montreal Convention by making a rather tortured distinction between the concept of “damages and compensation” in that compensation under the APPR is not an action for damages, and that cancellation, denial of boarding, and delay are factual and legal concepts that do not fall within the scope of the exclusivity principle.”

We’ll look at what Regulation 261 says, how it has evolved, by judicial interpretation, for better or worse (depending on your perspective) and consider how the EU courts may have gone against the intentions of the original drafters of the Montreal Convention which appears to have created an imbalance between the commercial realities relating to airlines on the one hand and consumer (passenger) rights on the other . There is an argument to say that the Passenger Rights pendulum has possibly swung so far now that the commercial reality is that passengers will be paying for their rights and remedies in the ticket price.

Listen to understand better how Passenger Rights have evolved in the UK, EU and Canada and how this impacts the aviation industry.

Useful Links

Supreme Court of Canada judgment

Air and Space Law article