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Statement of Claim

Court File No.

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

SUZANNE DEAK

Plaintiff  

and

SOCIETE AIR FRANCE, THE GREATER TORONTO
AIRPORT AUTHORITY, and NAV CANADA

Defendants 

STATEMENT OF CLAIM
Proceeding under the Class Proceedings Act, 1992  

TO THE DEFENDANT(S)

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil

Procedure, serve it on the plaintiff's lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with proof of service, in this court office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. If you wish to defend this proceeding but are unable to pay legal fees, legal aid may be available to you by contacting a local legal aid office.

Date: August 5, 2005
Issued by: Local registrar

Address of court office:
7755 Hurontario Street
Brampton , Ontario
L6V 2M7

TO: SOCIETE AIR FRANCE
151 Bloor Street West
Suite 810
Toronto, Ontario
M5S 1S4

AND TO: THE GREATER TORONTO AIRPORT AUTHORITY
Representative for Service:
Osler, Hoskin & Harcourt LLP
Suite 6600 , P.O. Box 50
1 First Canadian Place
Toronto , Ontario
M5X 1B8

AND TO: NAV CANADA
Representative for Service:
Gowling Lafleur Henderson LLP
Suite 2600
160 Elgin Street
Ottawa , Ontario
K1P 1C3

CLAIM

  1. The plaintiff claims for:
    1. An order certifying this proceeding as a Class Proceeding, for the following persons,
      • Persons who were aboard Air France, Flight No. 358, which departed from Paris bound for Toronto, Ontario, Canada on August 2, 2005;
      • Persons related to persons in the Class defined in paragraph 1(a)(i), who make claims pursuant to Section 61 of the Family Law Act, R.S.O. 1990, c. F-3, as amended.
    2. An order appointing Suzanne Deak as a representative plaintiff for the Class defined as above;
    3. General and aggravated damages in the amount of $75,000,000.00;
    4. Special damages and pecuniary damages in the amount of $250,000,000.00;
    5. Prejudgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C-43, s.128; and
    6. Costs of this action pursuant to the Class Proceedings Act, S.O. 1992, c.6; and
    7. Such further and other relief as this Honourable Court deems just.
  2. The plaintiff, Suzanne Deak, resides in the City of Toronto, in the Province of Ontario, and at all material times was a passenger on Air France Flight 358, from Paris, France to Toronto, Ontario.
  3. The defendant, Societe Air France (“Air France”) is a corporation incorporated pursuant to the laws of Canada with its head office located in the City of Toronto, in the Province of Ontario. Air France maintains business premises and conducts business in the Province of Ontario.
  4. The defendant, The Greater Toronto Airport Authority, is a private not for profit corporation without share capital corporation whose mandate is to provide the Greater Toronto Area with a regional system of Airports to meet the current and future demands for air services.
  5. The defendant, Nav Canada, is a non share capital private corporation that owns and operates Canada’s civil air and navigation system and was responsible for providing air traffic controllers at the Lester B. Pearson International Airport on August 2, 2005.

FACTS

  1. On or about August 2, 2005, the plaintiff, Suzanne Deak, boarded Flight 358 in Paris at approximately 1:53 p.m. local Paris time. At approximately 4:03 p.m. local Toronto, Ontario time, Flight 358 landed at the Lester B. Pearson International Airport on runway 24L, a 9000 foot long landing strip. Flight 358 overshot the runway by some 600 feet skidding off the runway into a gully and subsequently the plane split in half and was engulfed in flames and smoke within seconds. All passengers aboard Flight 358 were able to escape the said aircraft.
  2. At the time of the said landing, there were severe thunderstorms which were accompanied by heavy rain and wind in the vicinity of the Toronto Airport.

CAUSE OF ACTION

  1. The defendant, Air France, entered into contracts for international carriage with each of the passengers of Flight 358. The contracts of international carriage were governed by provisions of the Warsaw Convention as modified and amended by the Hague Protocol.
  2. The plaintiffs plead and rely upon the provisions of the Warsaw Convention and the Hague Protocol as adopted in Canada pursuant to the provisions of the Carriage by Air Act, R.S.C. 1985, C-26, as amended.
  3. The events described herein which occurred during Flight 358 constitute an accident within the meaning of Article 17 of the Warsaw Convention.
  4. Pursuant to Article 17 of the Warsaw Convention, Air France is liable to the passengers for damages sustained in the event of death, wounding or bodily injury caused by an accident, including any such damage which occurred onboard the aircraft or during disembarkation.
  5. The plaintiff, as well as other passengers, suffered bodily injury within the meaning of Article 17 of the Warsaw Convention, and, as a result, Air France is liable for damages sustained by the plaintiff and other passengers.
  6. The plaintiff pleads and the fact is that the crash landing of Flight 358 and the subsequent injuries sustained by the plaintiff and other passengers resulted from a negligent act or omission of Air France.
  7. Further and in the alternative the plaintiffs’ damages were caused by the negligence of Air France in the maintenance and operation of the subject aircraft.
  8. The particulars of the negligence of Air France includes, but is not limited to the following:
    1. It failed to adequately maintain the aircraft;
    2. It permitted the aircraft to be operated when it knew or ought to have known that it was unsafe to be operated;
    3. It allowed the aircraft to be maintained and operated by a crew who it knew or ought to have known lacked the proper skills through training and experience to properly maintain or operate the aircraft;
    4. It failed to hire properly trained pilots;
    5. It failed to ensure that the aircraft had enough fuel; and
    6. It failed to provide pilots who had enough experience to know that it was not safe to fly into Lester B. Pearson International Airport under the severe weather conditions.
  9. The particulars of negligence of The Greater Toronto Airport Authority and Nav Canada include, but is not limited to the following:
    1. they employed air traffic controllers who were not properly trained and lacked in the responsibility, reasonable care, skill and ability to act as air traffic controllers;
    2. They permitted Flight 358 to land when they knew or ought to have known that it was not safe to land;
    3. They permitted Flight 358 to enter the air space near Lester B. Pearson International Airport when they knew or ought to have known that it was not safe due to the extreme weather conditions at the time;
    4. They failed to have appropriate weather and meteorological equipment on site;
    5. They failed to have up to date wind shear indicators at the airport; and
    6. They failed to ascertain if the runways were safe to land.

DAMAGES

  1. As a result of the crash landing by Flight 358 and the emergency evacuation, the plaintiff, Suzanne Deak and other members of the Class described paragraph 1(a)(i), suffered personal injuries, including:
    • Soft tissue injures;
    • Fractures;
    • Bruising;
    • Abrasions;
    • Nervous shock;
    • Emotional distress;
    • Post-traumatic stress disorder; and
    • Other psychological disorders.
  2. As a result of the injuries to members of the Class described in paragraph 1(a)(i), the members of the Class described in paragraph 1(a)(ii), suffered damages recoverable pursuant to the Family Law Act, R.S.O. 1990, c. F-3, as amended, including:
    • Loss of care guidance and companionship;
    • The provisions of nursing and housekeeping services to injured family members; and
    • Out-of-pocket expenses, including but not limited to international telephone charges, travel expenses and lost income.
  3. Further, members of the Class described in paragraph 1(a)(i) suffered inconvenience and expense as a result of the accident, including the loss and enjoyment of vacation, international telephone expenses, medical expenses, additional travel expenses, lost income, and loss of competitive advantage in the market place and lost personal property
  4. To the extent that the plaintiff’s injuries and claims fall beyond the purview of the Warsaw Convention, the plaintiff relies on the domestic law of Canada to found liability on Air France based on negligence and breach of contract. In this regard, the plaintiff pleads that Air France was negligence for the reasons identified herein in paragraph 15 and is therefore liability to the plaintiff for all related and foreseeable damages. To the extent that such negligence is attributable to agents or employees of Air France, the plaintiff pleads and relies of the principles of agency law and vicarious liability respectively.
  5. Further, and/or in the alternative, the plaintiff seeks damages for bread of contract. In exchange of valuable consideration, the plaintiff contracted with Air France for transportation to Toronto, Ontario. It was a term of this contract that such transportation would be provided in a safe and competent fashion. Air France failed to fulfill this contractual obligation and is liability for reasonably foreseeable damages flowing from this breach.

JURISDICTION UNDER THE WARSAW CONVENTION

  1. Pursuant to the provisions of Article 28 of the Warsaw Convention, this court has jurisdiction over the passengers’ claims against Air France on the following basis:
    • Air France maintains a place of business in Toronto, Ontario, through which the contract of carriage Flight 358 was made; and
    • Flight 358’s crash landing occurred in Toronto, Ontario.
  2. The plaintiff proposes that the trial of this action take place in the City of Brampton, in the Province of Ontario.

Date: August 5, 2005

WILL BARRISTERS
Barristers & Solicitors
401 Bay Street, Box 96
Suite 3005
Toronto, Ontario
M5H 2Y4

Paul Miller (39202A)
Gary R. Will (23939S)
Tel : (416)360-1194
Fax: (416)360-8469

Solicitors for the Plaintiffs


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