Executive Summary: Key Legal and Evidentiary Issues

• Air Canada's agents failed to enter visa information into the Departure Control System, setting in motion a chain of events that led to the cancellation of valid visas for a Venezuelan mother and her three children at Tocumen International Airport in Panama City on August 4, 2017.

• Critical information provided by the plaintiff — that her husband intended to apply for a post-graduation work permit — was never relayed by the Air Canada agents to the CBSA Liaison Officer, and this omission was central to the visa cancellation decision.

• Air Canada failed to prove its defence under Article 19 of the Montreal Convention that all reasonable measures were taken to avoid the delay, and the Court additionally drew an adverse inference for its failure to call the male check-in agent as a witness.

• Ms. Mejias's alternative claims against the Attorney General of Canada for negligence and public law damages were both dismissed — the former for lack of proximity in the duty of care analysis, and the latter because the Supreme Court of Canada rejected the public law damages framework.

• None of the written settlement offers met the requirements of Rule 420 for formal cost consequences, although the plaintiff's offer of $5,000 was considered a relevant factor under Rule 400(3)(e).

• A Sanderson order was granted requiring Air Canada to pay the AGC's costs directly, on the basis that Air Canada's litigation positions caused the AGC to be added as a defendant and the claims were not independent of each other.

The facts of the case

In August 2017, Nazarelys Paula Mejias Turmero and her three children were in transit from Venezuela to Toronto to join her husband, who was completing his studies at Centennial College. The family had valid Canadian visas tied to the husband's study permit, with applications approved in December 2016. Ms. Mejias held an open work permit, Santiago held a study permit, and the two youngest children, Victoria and Paul, had multiple-entry visitor visas. In July, one-way tickets were purchased for travel from Venezuela to Panama on August 3, and then from Panama City to Toronto on August 4, 2017, on Air Canada flight AC 1949. The family planned to stay in Canada because the husband intended to apply for a one-year post-graduation work permit upon completion of his studies, though the application required proof of completion that would not be available until late August 2017.

Events at the check-in counter

When Ms. Mejias and the children presented themselves at the Air Canada check-in counter at the Airport on August 4, they were the first passengers in the Air Canada check-in line. A male Air Canada agent questioned Ms. Mejias in Spanish about their travel, including the purpose of their trip, the number of passengers, and their baggage. Critically, when asked about her intentions with one-way tickets and her work permit nearing expiry, Ms. Mejias explained that her husband was studying in Canada and would be applying for a post-graduation work permit upon completion of his studies. During this exchange, the agent stated that Victoria's and Paul's visas were "incorrect" because they expired at a later time than Ms. Mejias's work permit — though in fact, the children's visa expiry dates were aligned with the expiry of their passports.

The communications chain and visa cancellation

After questioning Ms. Mejias, the male Air Canada agent spoke to another Air Canada agent, Ms. Corrales, the supervisor, who in turn phoned Ms. Boisvert, the CBSA Liaison Officer in Panama. The information relayed to Ms. Boisvert focused on concerns that the family would overstay their authorized stay in Canada because they were travelling with a large quantity of luggage, had one-way tickets, and because of the number of travelers that were travelling from Venezuela at that time. There was no evidence that the critical information about the husband's intention to apply for a post-graduation work permit was ever communicated to CBSA. Ms. Boisvert then contacted Ms. Bouchard, the International Network Manager, CBSA, at the Embassy of Canada to Mexico, in Mexico City, who in turn asked Mr. Kent Francis, the Deputy Program Manager, Counsellor, Immigration, in Mexico City, to review the files. Mr. Francis — operating on information passed through what he described as a "telephone tree" where information may have become "misconstrued" or "garbled" — decided to cancel the visas. Among his reasons was the belief that Ms. Mejias had provided misleading or incorrect information to the airline and the CBSA officer in that she indicated they were returning to Canada when in fact they had never been to Canada. The Court accepted Ms. Mejias's evidence that when asked by the male Air Canada agent if it was her first time travelling to Canada, her answer was yes. Once informed of the cancellation, Ms. Corrales physically marked the visas as cancelled with a pen, and Ms. Mejias was informed by the male Air Canada agent that the visas were cancelled.

The Air Canada system and evidentiary findings

The trial Court found that the male Air Canada agent never entered the visa information into Air Canada's system. Air Canada's own Departure Control System records showed the passport information for Ms. Mejias and the Children but did not show any visa information. The Court did not find Ms. Corrales to be a reliable witness — her affidavit evidence was contradicted on cross-examination on several key points, including whether she was standing next to the male agent during the check-in process and whether Ms. Boisvert attended at the Airport on August 4 and spoke with Ms. Mejias. On this latter point, the Court accepted the evidence of Ms. Mejias and Ms. Boisvert that Ms. Boisvert did not attend at the Airport on August 4 and did not speak with Ms. Mejias. The male Air Canada agent who set in motion the chain of events was not identified by name in any of the affidavit evidence tendered by Air Canada at trial, was identified only as Alejandro during cross-examination of Ms. Corrales, did not testify, and there was no evidence that he was unavailable or otherwise unable to testify.

Thirty-three days in Panama and the re-issuance of visas

Stranded in Panama with three young children — who contracted chickenpox while there, with Santiago having contracted it before leaving Venezuela though he appeared to have recovered — Ms. Mejias spent 33 days attempting to resolve the visa situation. She retained a lawyer, Ms. Elizabeth Long, on approximately August 18. Through email correspondence with Mr. Francis, Ms. Long informed him that Ms. Mejias's husband was an international student completing his studies at Centennial College and was planning to make an application for his post-graduation work permit which would be valid for one year. Upon learning this new information, and confirming that the family did not speak with the CBSA officer but rather with the airline who consulted the officer stationed in Panama City, Mr. Francis decided to re-issue the visas. He testified that the husband's intention to seek a post-graduation work permit was a key factor in his assessment, and that based on that intention, the need for a return ticket was no longer there. The family finally travelled to Toronto on September 6, 2017, after Air Canada reprotected them with confirmed seats on Air Canada rouge Flight ZX1949, without any additional fee or service charges. On arrival in Toronto, they were permitted to enter Canada — Ms. Mejias was issued a work permit, Santiago a study permit, and the younger children were admitted as visitors.

The trial judgment on liability

The claim against Air Canada was brought under Article 19 of the Montreal Convention, which provides that a carrier is liable for damage occasioned by delay unless it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. The Court rejected Air Canada's argument that it only needed to prove reasonable measures to avoid the damage resulting from the delay, not the delay itself. Reviewing Canadian and international authorities, the Court concluded that Air Canada must prove that it took all reasonable measures to avoid the delay, as well as the damage resulting from it. Air Canada failed to meet this burden because it did not provide any evidence from the male Air Canada agent who set in motion the chain of events, the visa information was never entered into Air Canada's system, and Ms. Corrales relayed to Ms. Boisvert her assessment that Ms. Mejias and the Children were at risk of overstaying their authorized stay in Canada along with information that aligned with that view, without passing on the critical information about the post-graduation work permit. The Court additionally drew an adverse inference from Air Canada's failure to provide evidence from the male Air Canada agent, namely that his evidence would be contrary to Air Canada's position.

The claim against the Attorney General of Canada

Ms. Mejias's alternative claims against the AGC — for negligence and public law damages — were both dismissed. She had also originally asserted misfeasance in public office but conceded at trial that the Federal Crown had not engaged in misfeasance in public office. The negligence claim failed at the first step of the duty of care analysis because established case law holds that the relationship between Canada's immigration authorities and those subject to immigration decisions is not one that gives rise to a duty of care because the relationship is not one of individual proximity. The public law damages claim failed because the Supreme Court of Canada in Nelson (City) v. Marchi, 2021 SCC 41, rejected the framework for public law damages that had been discussed by the Federal Court of Appeal in Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89, stating that such an approach "has no basis in this Court's jurisprudence."

The costs decision and the Sanderson order

In the subsequent costs decision (2026 FC 421), the Court addressed costs following the trial. Air Canada did not seek costs and conceded that Ms. Mejias, as the successful party, was entitled to her costs. Air Canada proposed a "modest allowance" of $7,500 in costs plus her disbursements of $790.56. The Court found this reasonable and appropriate, awarding Ms. Mejias a total of CAD $8,290.56 in costs payable by Air Canada. The Court firmly rejected arguments by both Air Canada and the AGC that Ms. Mejias's claim could have and should have been brought in the Ontario Small Claims Court, holding that her claim fell within the jurisdiction of the Federal Court and she was entitled to bring her claim in this Court without being penalized in costs even if another Court also had jurisdiction. On settlement offers, none of the written offers met the requirements of Rule 420(3). The AGC's offer of $5,000, made on May 5, 2022, expired before the commencement of trial. Ms. Mejias's offer of $5,000, made on June 23, 2022, was contingent on acceptance by both defendants before the commencement of trial and therefore also expired before commencement of trial. The AGC accepted the plaintiff's offer, but Air Canada did not. The Court considered the plaintiff's offer a relevant factor under Rule 400(3)(e), finding that with virtually any award of costs to Ms. Mejias, she would beat her offer as against Air Canada. Ms. Mejias requested a Sanderson or Bullock order requiring Air Canada to pay the AGC's costs. Applying the two-step test from Moore v Wienecke, 2008 ONCA 162, the Court found it was reasonable for Ms. Mejias to have added the AGC as a defendant given Air Canada's defence and the positions it asserted, and that it was fair to shift the AGC's costs to Air Canada. Both defendants tried to meet Ms. Mejias's case by asserting they were not at fault and relying on the other; Air Canada's positions and the information and evidence it provided caused the AGC to be added as a party; and the claims against Air Canada and the AGC were not independent of each other as they arose from the same circumstances and the facts were interwoven. The Court granted a Sanderson order directing Air Canada to pay the AGC's costs directly, with the AGC given the opportunity to submit a bill of costs based on New Tariff B. The Court ordered Air Canada to pay Ms. Mejias CAD $8,290.56 by April 30, 2026, by way of certified cheque, bank draft or money order, and to pay costs to the AGC in an amount to be determined, with Air Canada and the AGC to submit a joint letter to the Court by May 15, 2026, indicating whether they had resolved the matter of those costs.