Executive Summary: Key Legal and Evidentiary Issues

• Scope and exclusivity of the Montreal Convention as the sole basis of liability for delay in international air carriage, displacing Quebec civil law remedies.
• Whether Air Transat proved it took all reasonably required measures to prevent or minimise the delay under Article 19, including maintenance practices and the timing of dispatching a replacement aircraft.
• Admissibility and sufficiency of “self-serving” internal maintenance records without expert evidence to establish that the hydraulic pump failure was unforeseeable and irresistible.
• Availability of non-pecuniary (moral) damages for delay under Article 19 of the Montreal Convention, and whether “dommage” includes moral injury and inconvenience.
• Proof of class-wide non-pecuniary harm and the use of representative testimony and presumptions to quantify a uniform amount per passenger.
• Failure of evidence to substantiate pecuniary losses (meals, telephony, lost wages) and application of the collective recovery mechanism under Article 595 Cpc for non-pecuniary damages only.

Facts of the case

The case arises from a class action brought on behalf of 189 passengers, including 39 children, who were booked on Air Transat flight TS 803 from Holguín, Cuba to Montréal on 16 August 2019 at 21:00. The representative plaintiff, Vlad Mihai Calciu, had purchased a package holiday including return air transport with Air Transat through a travel agency. The outbound flight from Montréal to Holguín (TS 802) operated as scheduled on 9 August 2019, and the dispute centres on the severely delayed return flight. On 16 August 2019, the aircraft operating TS 803 departed Toronto at 16:40, arrived in Holguín at 21:07 and, according to Air Transat’s pre-flight checks, was in proper working order. During the descent into Cuba, however, an onboard alert indicated a failure in one of the three hydraulic systems (the “blue” system). The captain, Pascal Dagenais, notified Air Transat’s operations and maintenance control in Montréal via the ACARS text system, and ground maintenance staff in Holguín—local certified mechanics under contract—were alerted that a potential repair might be required on arrival.
Once on the ground, the Toronto passengers disembarked and mechanics began visually and technically inspecting the hydraulic system, supervised by the captain and in real-time communication with Air Transat’s maintenance supervisor in Montréal. Only after landing did the airline begin to explore whether the signal represented a genuine fault or a false alert, and whether any defect could be repaired locally without disrupting the return flight. Around 22:35 a hydraulic fluid leak was detected, and further testing—using hydraulic fluid borrowed from Air Canada in Holguín—eventually revealed a defective pump in the blue hydraulic system. The diagnosis process, carried out through the night, was hampered by the mechanics’ inability for some time to transmit photographs of the damaged component to Montréal.
In the meantime, passengers for TS 803 had passed security and were waiting in the airport’s boarding area, which was non-air-conditioned, with closed restaurants and a non-functioning public address system. They saw their aircraft land and disembark the Toronto passengers and initially assumed boarding would commence shortly. From 21:00 to 23:00, however, they received no formal information from any Air Transat representative or airport staff. The captain first addressed them in person only around 23:00, briefly stating that the flight would be delayed, without clear explanation or indication of the likely duration. On his initiative, limited quantities of bottled water and baby formula were distributed, which proved inadequate given the number of passengers and the presence of many children and infants. No food was provided, and airport food outlets had already closed.
A second address by the captain around 01:00 on 17 August informed passengers that, due to the hydraulic problem, the flight was postponed to the following day, likely around 16:00, and that they would be bussed to hotels overnight. Because there was no PA system, he had to speak to clusters of passengers and use a makeshift loudhailer, so information travelled largely by word of mouth. Between roughly 03:00 and 04:00, amid significant confusion and a lack of clear instructions, buses transported the passengers to three different hotels. The boarding process for the buses was described as chaotic and disorganised, with passengers feeling herded “like cattle”.
On arrival at the hotels around 04:00–04:30, check-in was slow due to limited staff. Many passengers only obtained rooms around 05:00–06:00. The rooms were often unsuitable: incorrect bed configurations, damp beds, dirty conditions, insects on the floor, lack of towels, air-conditioning, or refrigerators. The hotels were not properly prepared to receive an entire planeload of guests. Passengers managed to rest only briefly and ate sparingly from substandard food. They were not told clearly and reliably when buses would return them to the airport, prompting some to forgo sleep or wake up very early to avoid missing departure. Around 11:30, they were transported back to the airport.
Back at Holguín airport, a replacement Air Transat aircraft—dispatched from Montréal without passengers—arrived at 14:51 on 17 August and departed Holguín at 16:18, arriving in Montréal at 20:00. Accounting for the original scheduled arrival time of 00:55 on 17 August, the delay was about 19 hours. Many passengers had gone more than 34 hours without proper sleep and had eaten very little. On board the replacement flight, Air Transat provided a free meal and handed each passenger a CAD 200 credit voucher for future travel, accompanied by a letter of apology. The airline also issued a letter confirming the delay for use in travel insurance claims. Some passengers later secured ex gratia compensation; others were refused. Several passengers subsequently travelled again with Air Transat, some using or cashing out the CAD 200 credit.

Legal framework and policy terms at issue

The plaintiff framed the claim exclusively under Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention, 1999), as incorporated into Canadian law by the federal Air Transportation Act. The Montreal Convention governs international carriage of passengers, baggage, and cargo between state parties, including Canada and Cuba. Articles 17 to 19 establish carrier liability for death or bodily injury, damage to baggage, cargo loss or damage, and delay.
Central to the case was Article 19, which stipulates that a carrier is liable for damage resulting from delay in the carriage of passengers, baggage, or cargo, unless the carrier proves that it and its agents took all measures that could reasonably be required to avoid the damage, or that it was impossible to take such measures. Article 29 reinforces that any action for damages connected with international air carriage can only be brought under the Montreal Convention and only under its conditions and liability limits, to the exclusion of domestic causes of action and punitive or exemplary damages. Articles 22 and 23 impose monetary limits, expressed in Special Drawing Rights (SDRs), on damages recoverable for delay. At the material time, the per-passenger limit for delay was 4,150 SDRs, worth approximately CAD 1.82 per SDR in 2019, yielding a liability cap of about CAD 7,553 per passenger.
Air Transat therefore argued that the Montreal Convention was the exclusive source of liability and that it had complied fully with its maintenance obligations, having performed all scheduled inspections and adhered to Airbus recommendations regarding the hydraulic system and its pump. It sought to characterise the pump failure as an unforeseeable, unavoidable mechanical defect and contended that it had taken all reasonable measures to prevent or minimise delay by promptly diagnosing the problem, coordinating with local mechanics, and ultimately dispatching a replacement aircraft. It further submitted that non-pecuniary damages—such as moral injury, inconvenience, distress and loss of enjoyment—are not compensable under the Convention, relying heavily on the Supreme Court of Canada’s decision in Thibodeau v Air Canada and subsequent case law rejecting moral damages under the Convention in various contexts.
The plaintiff, in contrast, maintained that Article 19’s reference to “dommage” is not limited to pecuniary heads and that, subject to the Convention’s caps and prohibition on punitive damages, compensatory non-pecuniary loss is recoverable for delay. He claimed CAD 1,740 per passenger for inconvenience and 19 hours of waiting, CAD 1,000 in moral damages, CAD 100 for meals, provable telephony costs, and CAD 400 in lost wages for 17–18 August, seeking collective recovery for the class.

Liability for delay and evidentiary assessment

On the threshold issue of liability under Article 19, the court held that Air Transat bore the burden of proving it had taken all reasonably necessary measures to avoid or mitigate the damage caused by the delay, or that such measures were impossible. While recognising that an unforeseen mechanical defect can, in principle, support a carrier’s defence, the court found the airline’s proof wanting.
First, Air Transat’s evidence that the aircraft was properly maintained—through testimony by its maintenance supervisor and internal records of inspections and compliance with the Airbus maintenance programme—was characterised as self-serving. Without independent expert evidence, the court considered it insufficient to demonstrate that the pump failure was truly unforeseeable and unavoidable. The airline did not call an expert to explain industry standards, the frequency or rarity of such pump failures, or whether strict adherence to the maintenance manual would make this type of failure effectively unpredictable. The mere assertion, by an internal witness, that the pump rarely fails and that maintenance intervals were respected was not enough to discharge the Article 19 burden. The court expressly held that an expert was needed to validate that this was an unpredictable mechanical failure rather than a risk that should reasonably have been anticipated and managed.
Second, even if the mechanical failure were accepted as unforeseeable, the court examined whether Air Transat took all reasonable steps to minimise the delay once the problem arose. Here, the timing concerning the decision to dispatch a replacement aircraft proved decisive. The record showed that by shortly after midnight (around 00:13 on 17 August), Air Transat’s maintenance supervisor in Montréal had concluded, based on telephone descriptions from Cuba, that the pump likely could not be repaired on site and that the flight was essentially “dead.” Yet there was no clear evidence as to exactly when a firm decision was made to send an empty aircraft from Montréal, who made it, or why that aircraft only left Montréal at 11:03 and arrived in Holguín at 14:51.
The court found a significant evidentiary gap about these operational choices. It questioned why, if the decision to abandon repair and provide a replacement aircraft was taken around midnight or shortly thereafter, the replacement flight could not have been dispatched significantly earlier, potentially avoiding the need to send passengers to hotels at all. No detailed logistical evidence was offered about aircraft availability, crew constraints, or regulatory limitations that could justify the long interval between realising the flight could not operate and actually sending a new plane. There was also no exploration of whether other carriers’ aircraft could have been used.
In the absence of a robust factual explanation, the court was unable to conclude that all reasonable steps had been taken to limit the duration of the delay. This combined with the lack of expert evidence on the mechanical issue led the court to hold that Air Transat had failed to discharge the onus under Article 19. The airline was therefore liable for the damage suffered by passengers as a result of the roughly 19-hour delay.

Non-pecuniary damages under the Montreal Convention

Having found Air Transat liable, the court turned to the controversial question of whether non-pecuniary damages are recoverable under Article 19. Air Transat contended that, in light of Thibodeau, non-pecuniary “moral” damages and inconvenience are excluded because the Convention only contemplates pecuniary loss in delay cases and because Thibodeau had refused such damages. The court rejected this reading.
It distinguished Thibodeau on the basis that the plaintiffs there were seeking damages primarily for breach of the Official Languages Act, not for bodily injury within the scope of Article 17, and that the Supreme Court’s refusal of moral damages stemmed from the claim not fitting into one of the Convention’s defined categories of liability. In the present case, the passengers’ claims arose squarely under Article 19 as damage “resulting from a delay.” The term “dommage” in Article 19 is not defined and, in the court’s view, is not textually limited to pecuniary heads. Nor is there language tying Article 19 strictly to the kinds of harm described in Articles 17 and 18.
The court emphasised that Article 29 of the Convention excludes punitive or exemplary damages and damages “à un titre autre que la réparation,” but by negative implication permits all compensatory damages, including those that are non-pecuniary, so long as they are not punitive and remain within the Convention’s financial caps. On this reading, moral injury, psychological distress, and loss of dignity can be compensable consequences of a delay, provided they are proven. Acknowledging that its approach diverged from a line of appellate and superior court decisions which had denied non-pecuniary recovery in Montreal Convention cases, the court expressly accepted it was “going it alone” but maintained that the Convention’s language and structure supported its conclusion.

Assessment and collective recovery of non-pecuniary harm

Evidence of non-pecuniary harm came from the uncontradicted testimony of the representative plaintiff and three other passengers, supplemented by written complaints from several others. The court found that these accounts credibly established harsh, objectively difficult conditions experienced by all passengers: a total delay of 19 hours; prolonged waiting in a small, un-air-conditioned airport area; passengers lying on benches or on the floor; significant discomfort, hunger, and exhaustion; prolonged information blackouts; rudimentary and largely informal communication of updates; chaotic transfers to hotels without clear instructions; and unsuitable hotel rooms and facilities.
From these circumstances, the court inferred a common pattern of non-pecuniary harm—anxiety, distress, disgust, fear, humiliation, and a sense of being treated with contempt or as “less than nothing”—experienced by the whole group. Some individuals suffered more acutely, such as a hypoglycaemic passenger and a child with a caecostomy, but the court considered it both fair and administratively workable to assign a uniform amount of non-pecuniary compensation per passenger. It fixed this at CAD 2,000 per person, representing the combined value of “troubles et inconvénients” and moral damage, and well below the Montreal Convention’s per-passenger cap of approximately CAD 7,553.
In determining the mode of recovery, the court applied Article 595 of the Quebec Code of Civil Procedure, which favours collective recovery in class actions where the total value of members’ claims can be established with sufficient precision. The class size of 189 persons was known, and the per-member non-pecuniary damage was set at a uniform CAD 2,000, making the total easily calculable at CAD 378,000. Drawing on Quebec jurisprudence stressing the policy goals of class actions—access to justice, judicial efficiency, and deterrence—the court opted for collective rather than individual recovery, noting that a strict individual-claim process would risk low participation and could allow a culpable defendant to retain benefits gained from wrongful conduct.

Pecuniary damages: failure of proof

The court then addressed the three heads of claimed pecuniary loss: meal expenses, telephony costs, and lost wages. It held that the plaintiff had failed to prove even the existence, let alone the quantum, of losses under these heads, both for himself and for other members of the class.
As to meal expenses, the representative plaintiff’s only out-of-pocket cost was the equivalent of CAD 0.29 for a jug of water at the hotel, which the court dismissed as de minimis. He adduced no receipts or specific evidence of other passengers’ meal expenditures during the delay window. Without any proof of actual financial loss for the group, the court refused to infer generic meal expenses and rejected the entire claim.
For telephony, the plaintiff incurred no expenses himself. The only identified cost was a data or internet card purchased by a class member, Mélissa Côté Jacques, to access WhatsApp; that amount had already been reimbursed by Air Transat. Since no unreimbursed telephony expenses were proven for any member, the claim was also dismissed.
Regarding lost wages, the plaintiff testified that he was required to work on Saturday 17 and Sunday 18 August but was unable to do so due to fatigue from the delay, and he claimed roughly CAD 400 for those days. The court applied the “best evidence” rule and found his oral testimony insufficient to establish an obligation to work those specific days; no adequate corroboration from the employer was produced. Payroll records instead showed he was fully paid for the relevant weeks, undermining any assertion of actual wage loss. The mention of his spouse missing work on 19 August likewise lacked proper documentary support. No other uncompensated wage losses among class members were shown. As a result, the court rejected all pecuniary damage claims and declined to open an individual recovery phase for them, noting that the existence of the damage itself (as opposed to precise quantum) must be established at the common issues trial, which had not been done.

Interest, additional indemnity and costs

Under Quebec civil law, successful claimants are presumptively entitled to legal interest and, in many cases, an additional indemnity on monetary awards. The court awarded interest at the legal rate and the additional indemnity provided for in Article 1619 of the Civil Code of Québec, with both running from 29 August 2019—the date the class-action authorization application was filed—until full payment. The decision did not calculate the exact future amount of interest and indemnity, as this naturally depends on timing and rates, but confirmed that these sums accrue on top of the principal damages.
The court also awarded “frais de justice” (court costs) in favour of the representative plaintiff. Given that he succeeded on liability and obtained approximately half of the total damages originally claimed (the non-pecuniary component, but not the pecuniary claims), the court considered it appropriate to grant him his costs in accordance with the usual rules. The precise monetary value of those costs is not fixed in the judgment, as they are subject to the applicable tariff and later assessment or taxation.

Outcome and significance

In its final orders, the Superior Court of Québec partly allowed the modified class-action claim and partly upheld the airline’s defence. It declared Air Transat liable under Article 19 of the Montreal Convention for damage resulting from the 19-hour delay of flight TS 803 and ordered collective recovery for non-pecuniary harm. Air Transat was condemned to pay CAD 378,000—representing CAD 2,000 per passenger for moral injury, inconvenience and distress—to the group, with interest at the legal rate and additional indemnity from 29 August 2019, and with collective recovery and subsequent directions on distribution to be determined at a later hearing. All claims for pecuniary damages (meals, telephony, wage loss) were dismissed for lack of proof, and the plaintiff was awarded his legal costs.
The successful party is therefore the plaintiff and class of passengers, who obtained both a determination of the carrier’s liability for delay and a substantial collective award of non-pecuniary damages, totalling CAD 378,000 plus interest, additional indemnity, and court costs. The exact total monetary amount, including all accrued interest, additional indemnity and assessed costs, cannot be quantified from the judgment itself.