The Superior Court of Justice of Ontario in its judgment released on November 5, 2010, in Balani v. Lufthansa, 2010 ONSC 3003 (CanLII) decided that the Court has no jurisdiction over the plaintiffs’ action against the defendant, a German airline company, under the Convention for the Unification of Certain Rules Relating to International Carriage by Air (“Warsaw Convention”).

The plaintiffs, a couple, were travelling on round trip tickets they purchased from the defendant through a travel agent in India. The plaintiffs alleged that the wife was obliged to walk from the aircraft because the defendant failed to arrange a wheelchair upon the plaintiffs’ request. When the wife came to an escalator in the terminal, she had a fall and suffered permanent and serious injury.

The Court found that the plaintiffs’ claim is governed by Article 17 of the Warsaw Convention. In making such a finding, the court firstly followed the United States Supreme Court’s decision in Olympic Airways v. Husain, 540 U.S. 644 (2004), which stated that “inaction by the carrier could constitute an ‘accident’ within the meaning of Article 17”. Secondly, the Court refused to apply the Day test, which was relied upon by the plaintiffs, and found it clear that the claim comes within the meaning of Article 17 given the place of the alleged injury causing accident and the defendant’s failure to provide the wheelchair.

The Court further decided that it has no jurisdiction under the Warsaw Convention because Canada and Ontario don’t satisfy any of the following four criteria under Article 28: 1) the defendant carrier is ordinarily resident in Germany; 2) the defendant’s principal place of business is in Germany; 3) the contract was made in India; and 4) the place of destination is India.

David Alderson, LL.B, LL.M (Lond.)

Masha Loftus, M.A., J.D

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