Niche area demands dedication, specialized legal knowledge, and highly technical expertise
This article was produced in partnership with Howie Sacks & Henry LLP
Paul Miller’s first aviation case was the 2005 Air France plane crash. The firm he was with at the time put together a town hall meeting to talk to people about their rights under the Montreal Convention, and within a few days was retained. Soon after that, Miller’s phone rang.
“I got a call from JJ Camp who told me I had two choices: lose the case or work with his firm,” recalls Miller, managing partner at Howie Sacks & Henry LLP. “Considering I hadn’t done an aviation case in my life, I chose the latter.”
Miller welcomed the opportunity to join forces and worked closely with Joe Fiorante, partner at CFM Lawyers, on liability and damages. Six years later, the Air France settlement was finalized but the partnership between Fiorante and Miller was just beginning. From advice on smaller domestic files to partnering again in a more formal capacity for other international cases, it continues to this day.
“Everyone’s trying to find a niche, but it’s dangerous to throw yourself into an area without taking the time to learn the experts, the technicalities, the science,” Miller says. “We consistently seek out support from those who’ve been doing it longer. It’s not about the individual lawyer or firm, it’s about getting the right results for the client.”
CFM Lawyers built its reputation as one of the top firms in aviation law by acting for the Workers’ Compensation Board of British Columbia. Two back-to-back cases involving the failure of aircraft components were the impetus for its specialization and today, product liability against aircraft manufacturers comprises the bulk of the firm’s work. These cases necessitate a thorough understanding of the design, engineering, and certification of aircraft components and turn on detailed technical investigations.
Outside of domestic plane crashes which fall under the common law of negligence, there’s the 1999 Montreal Convention, a treaty that governs airline liability on international flights and was designed to replace the Warsaw Convention of 1929. A legal regime unto itself, “you have to be able to fit the case within the legal structure provided by the convention because it provides exclusive remedy against the airline,” Fiorante notes.
“The Montreal Convention is a self-contained body of international law with its own rules on jurisdiction and liability,” he explains. “How it’s integrated into domestic law is not always seamless. There are still a lot of unanswered questions.”
After Air France, Fiorante and Miller took on Fly Jamaica, which also involved international transport of passengers and claims against the carrier. Miller says they made a conscious decision to keep it as a class action given that there had been no loss of life or catastrophic injuries. In the same way they ran the Air France case, they conducted individualized damage assessments on the class members. Accounting for modest injuries that wouldn’t be economical to pursue as standalones up to the most seriously injured passengers, the goal was to take the best of what the class action can do for people while still meeting one-on-one with each class member to understand the unique impact the accident had on their lives.
“That’s been our model for these cases,” Fiorante adds, and Miller agrees, noting that they used this strategy during Air France and found it to be very effective.
“We spent a lot of time determining when each person would be able to go back to work or whether they needed home care assistance, for example, and the clients were appreciative of that,” Miller says. “I’m proud of the fact we didn’t have one person object to the settlement.”
Miller and Fiorante collaborated again after a Ukrainian aircraft was shot down over Tehran in January 2020. Because the damages were so extreme — there were no survivors — they moved forward with a mass tort model. The Ukrainian Airlines case involved working with people who had experienced profound loss and trauma — many of the passengers were Iranian citizens, so loved ones had to grapple with the fact that their homeland shot their family members out of the sky — and was incredibly emotional for all stakeholders.
Miller was struck by the family members who arrived in court on the first day of the December 2023 trial wearing buttons with the faces of their loved ones who died, while Fiorante found the last day especially difficult when a client he’d built a close relationship with shared texts he’d exchanged with his sister shortly before she boarded the plane.
“These are real people, not a file,” Miller says. “We always fight like crazy for our clients, but this was extra motivation for our team to fight even harder.”
The trial enforced trauma-informed guidelines where counsel had the obligation to identify potentially traumatic evidence in advance. While lawyers typically handle this behind the scenes, going into it with a standardized approach was valuable. Victims want and deserve answers, Fiorante notes, but it’s incumbent on the lawyers and triers-of-fact to ensure they are prepared for difficult information.
The Ukrainian Airlines case also stands out because it’s the first case that went to a merits trial under the Montreal Convention in Canada. The convention establishes a two-tiered system of liability for the airline: it is strictly liable to all passengers in the event of injury or death arising from an accident up to approximately $180,000 USD but after that, there’s a reverse onus meaning that the airline will not face any further liability if it can prove it wasn’t negligent.
The judge found that Ukraine International Airlines (UIA) had not met its burden of proof and there was ample evidence that they were negligent and had not met the standard of care, holding the airline legally responsible to pay full compensation. The decision has since been appealed.
“We’re waiting on scheduling, and we will be seeking to have it heard as an expediated appeal,” Foriante says. “We still have to deal with damages and after four years, these families need a legal ruling to address this part of the tragedy and be able to move forward with their lives.”
Though overall aviation gets safer by the day, there are some noteworthy exceptions. For example, there’s increased scrutiny on how the embedded safety critical software that controls aspects of the operation of an aircraft is designed and tested. Whether this software is defective is the crux of the Boeing 737 Max case, with the Boeing accidents overall showing an alarming backslide in safety and engineering.
Another more technical trend is the modification of ageing aircraft. Companies come forward regularly with a Transport Canada-approved improvement, but how many of these fixes can an older aircraft tolerate? Fiorante points to a recent case in Manitoba where the wing broke off a float plane while in flight and everyone onboard was killed as an example of how “people stack improvement on improvement with no holistic understanding of how those small things work together.”
“Who’s in charge of understanding the global effect of minor modifications? It’s a real ‘inside baseball’ concern, but it’s something that’s cropped up in more than a few cases.”
As conflict zones around the world increase, they’re starting make up a larger and larger part of airlines’ risk analysis and Miller credits the Ukrainian Airlines case with elevating that consideration. Though airlines are not expected to be experts in geopolitical military conflicts, the recent decision underscores that they must be aware of potential dangers in their airspace — and airlines appear to be taking that more seriously. For example, when things escalated again in the Middle East following the execution by Israelis of a Hamas leader in Iran, for the first time airports in the area were either shutting down or rerouting flights. For Miller and Fiorante, having a hand in effecting positive change only solidifies their dedication to the complex and evolving practice area.
“Common sense dictates that our case impacted what’s happening now with aviation travel through those military conflict zones,” Miller says. “That leads to a real sense of pride for our entire team.”
