Executive Summary: Key Legal and Evidentiary Issues

• Scope of Air Canada’s contractual obligations, including whether aircraft type, cabin configuration and class of service form part of the transport contract.
• Contract interpretation of the Tariff’s “no guarantee” provisions versus clauses treating aircraft/class substitutions as compensable schedule “perturbations.”
• Comparative expert evidence on the “cabin experience” and quantification of the value gap between Air Canada mainline and Air Canada Rouge services.
• Rejection of Air Canada’s force majeure defence based on the Transport Canada grounding of Boeing 737 MAX aircraft.
• Determination that the class action must proceed with individual (not collective) recovery due to insufficient proof of aggregate damages.
• Redefinition and narrowing of the class to Québec residents and to a shorter time window, given lack of proven foreign/provincial law and operational evidence after March 2020.

Facts and procedural background

The class action in Jutras c. Air Canada arises from the grounding of Boeing 737 MAX aircraft and the operational choices Air Canada made in response. On 13 March 2019, Transport Canada issued an order prohibiting the operation of all Boeing 737 MAX aircraft in Canadian airspace. Air Canada had been using the 737 MAX on various routes, including leisure routes to sun destinations and Europe. Following the grounding, it restructured its network and, for some passengers, transferred flights that had been booked on Air Canada’s mainline fleet to flights operated by its lower-cost affiliate, Air Canada Rouge.
Representative plaintiff Nathalie Jutras purchased three Montréal–Guadeloupe round-trip tickets on 10 March 2019, for travel in July 2019. The tickets were marketed as Air Canada flights operated on 737 MAX aircraft. After the grounding, Air Canada notified her that her flights had been reassigned to Rouge. She was offered three options: cancellation with a full refund; rebooking under certain conditions; or acceptance of the Rouge flight in exchange for a 15% discount on a future reservation, the discount being specifically tied to the absence of an in-seat entertainment system on Rouge aircraft. Considering these alternatives unsatisfactory, Jutras sent a demand letter seeking an immediate refund of 15% of the ticket price, which Air Canada refused. She nonetheless took the trip, flying outbound on an Airbus A319 operated by Rouge and returning on an Air Canada mainline aircraft, and testified that she perceived a significant drop in comfort and in-flight services when flying Rouge.
Co-representative plaintiff Mathieu Bourdet had a similar experience. On 10 January 2019, he purchased four Montréal–Bordeaux round-trip tickets for summer 2019 travel, also scheduled on 737 MAX aircraft under Air Canada mainline. In early and mid-May 2019, Air Canada informed him that the flights would be transferred to Rouge-operated Boeing 767-300 aircraft, with the same three-option menu offered as to Jutras. Bourdet travelled on Rouge in both directions and reported an inferior cabin experience relative to Air Canada mainline. He later purchased a one-way Montréal–Edmonton ticket (departure in February 2020) initially on a 737 MAX, which was similarly transferred in October 2019 to a Rouge-operated Airbus A319; again he described a noticeably lower level of comfort and service.
The class authorized at the outset was national in scope. It comprised all natural persons in Canada who bought an Air Canada ticket for travel (departure or transit) between 13 March 2019 and the end of the 737 MAX suspension, and whose flight was transferred to Air Canada Rouge (A319, 767-300 or A321) without unconditional financial compensation. The plaintiffs alleged a class-wide monetary loss arising from a reduction in the quality and value of the in-flight service when moved from Air Canada mainline to Rouge.

Nature of the contract and characterization as a consumer and adhesion contract

The Court characterizes the agreement between passengers and Air Canada as a contract of carriage within the meaning of the Civil Code of Québec. More specifically, it is a contract of adhesion: the essential clauses are drafted unilaterally by Air Canada and accepted as-is by passengers at the time of online booking, with no opportunity for negotiation. The contractual corpus is composed principally of Air Canada’s International Tariff and Domestic Tariff, both filed with the Canadian Transportation Agency and accessible via hyperlink during the booking process.
The Court also notes that, for many members, the contract is a consumer contract, as the group consists of natural persons who bought tickets for personal travel. While Air Canada questioned whether the absence of defined sub-groups precluded direct application of the consumer protection regime, the Court points out that sub-groups can be created later if needed, and in any event the core liability analysis in this case would reach the same conclusion under general contract law and under the Loi sur la protection du consommateur.
This dual characterization matters for interpretive purposes: it confirms that the Tariff is a contract of adhesion and that any ambiguity must be resolved in favour of the passenger, not the carrier, and that in the consumer context the service must conform to its contractual description.

Key policy terms and clauses at issue

At the heart of the dispute lie Air Canada’s own Tariff provisions, particularly Rules 30 and 80. Rule 30, dealing with “Tariffs, classes of service and upgrades,” explains that certain products and services—such as separate check-in, in-flight entertainment, reading material, meals and drinks—are offered by reference to the class of service or fare type. However, it also stipulates that these are non-guaranteed prestations and that no compensation will be provided in case of non-availability.
Rule 80, addressing “Schedule irregularities,” contains two important components. First, it states that departure and arrival times, trip duration and the type of aircraft shown in schedules are approximate, not guaranteed and not part of the contract of carriage, and that no Air Canada representative has authority to bind the carrier on these aspects. Second, it defines “schedule irregularity” to include, among other things, substitution of aircraft or class of service, and provides that in the event of such a disturbance the carrier must reroute the passenger and, if the new itinerary or class of service is less expensive than what the passenger paid, refund the difference in price.
Air Canada argued on the basis of these provisions that the type of aircraft and level of on-board service were not contractual elements. It further contended that there were effectively only two relevant classes—economy and business—regardless of whether the flight was operated by Air Canada mainline or by Rouge, so that a transfer within economy should never result in a compensable “downgrade” unless a passenger moved from business to economy.
The Court finds the Tariff ambiguous when read as a whole. On the one hand, the “no guarantee / no compensation” language appears to exclude aircraft type and amenities from the contract. On the other, the explicit treatment of aircraft or class substitution as a “perturbation” giving rise to a refund of the price difference contradicts that exclusionary stance. This internal tension triggers the need for a deeper interpretive analysis under the Civil Code.

Interpretation of the transport contract and the role of marketing representations

In resolving the ambiguity, the Court starts from the Tariff’s own structure. It notes that the specific clause defining substitution of aircraft or class of service as a schedule irregularity prevails, by its precision, over the more general disclaimers in prior sections. This suggests that aircraft type and cabin/service class are indeed part of the package the passenger purchases and that changes to those elements are contractually recognized as disturbances capable of affecting price.
The Court then examines Air Canada’s website and marketing materials in force at the relevant time. The site described multiple distinct cabins and classes—such as Signature Class, business class on the Boeing 787 Dreamliner, premium economy, various Air Canada economy cabins and several Rouge cabins—and framed them as different “experiences,” inviting customers to “choose [their] seat among the clouds” and offering virtual tours and images of the different interiors. Some descriptions explicitly tied a cabin to a particular operator (Air Canada mainline or Rouge) and sometimes to a particular aircraft type. These materials show that what Air Canada sells is not a bare right to be carried from origin to destination, but a composite product that includes a specific cabin configuration, level of comfort and in-flight services.
The Court also considers the evidence on seat configurations. Rouge aircraft—A319, A320, A321 and 767 configured for Rouge—are densified: they include additional rows, resulting in shorter seat pitch, reduced legroom, less seat recline and, in many cases, the absence of seat-back entertainment screens, replaced by streaming content to personal devices. By contrast, Air Canada mainline aircraft generally offer more space per seat, a greater proportion of premium seats and individual seat-back screens with extensive on-demand entertainment.
From this, the Court concludes that the “class of service” in the Tariff must be understood more broadly than just a binary economy/business distinction. It encompasses the overall cabin experience, including the interplay of aircraft type, seating configuration, and in-flight amenities. In such a framework, a passenger who booked an economy seat on a 737 MAX operated by Air Canada mainline is not in an equivalent “class of service” when moved to a denser Rouge economy cabin without seat-back entertainment.

Evidence of contractual understanding and good faith performance

Air Canada’s own behaviour following the 737 MAX grounding reinforces this interpretation. When notifying passengers like Jutras and Bourdet of the transfer to Rouge, the airline offered, as one option, to honour the new Rouge itinerary while providing a 15% reduction on a future booking, explicitly justified by the absence of in-seat entertainment. This practice strongly suggests that Air Canada recognized a real, quantifiable drop in service value associated with the move to Rouge.
Although the airline later tried to reframe this offer as a purely voluntary, ex gratia “act of kindness,” the Court notes that the contemporaneous communications to customers did not characterize it that way. In other contexts—such as separate web pages addressing Rouge substitutions unrelated to the 737 MAX issue—Air Canada did explicitly speak of “goodwill” and “acts of kindness” when offering discounts. The contrast in wording, together with the Tariff’s treatment of aircraft/class substitutions as disturbances, leads the Court to treat the 15% offer here as tacit recognition that the contractual value of the service had changed in a way that warranted compensation.
Because the contract is one of adhesion, any residual doubt must be resolved contra proferentem, against the drafter. The Court therefore interprets the Tariff to mean that aircraft type and class of service—understood as the cabin experience—form integral parts of the transport contract. When Air Canada fails to provide those elements, the situation is a “perturbation” triggering a right to reimbursement of the price difference.

Expert evidence on the value difference between Air Canada and Rouge

On the question whether Rouge constitutes a low-cost carrier and whether there is a measurable difference in value between its services and those of Air Canada mainline, the Court heard from two experts.
Professor Jacques Roy, for the plaintiffs, is a recognized specialist in transport networks and air transport strategy. He reviewed Air Canada’s annual reports, which explicitly describe Rouge as the company’s low-cost carrier arm used to compete against low-cost and ultra-low-cost airlines in North America. He traced the evolution of low-cost carriers since the early Southwest model and explained how the key features—simplified operations, high seat density, minimal cabin comforts—are reflected in Rouge’s configuration. He showed that Rouge assigns more seats per aircraft, shortens pitch and recline, and replaces individual seat-back screens with streaming content, especially on leisure and “sun” markets.
Roy also analyzed Air Canada-supplied data on cost per available seat mile, revenue per available seat mile and yield per revenue passenger mile. His initial calculations, performed by comparing Rouge to all Air Canada operations (excluding only Rouge itself), indicated gaps of roughly 28.8% in costs, 21.9% in revenue and 21.6% in yield, leading him to approximate the loss of value for passengers at 25% of the ticket price.
Ian Kincaid, for Air Canada, critiqued this approach. He accepted that Rouge is lower-cost than Air Canada mainline but argued that it does not fully match the classic low-cost carrier archetype and emphasized that Rouge is operationally integrated into Air Canada’s network, sharing its reservations system and route structure. More importantly, he pointed out that Roy’s comparators should have excluded both Rouge and Air Canada Express, a regional feeder with different economics. Once Express was removed and Rouge was compared only to Air Canada mainline, the calculated gaps narrowed significantly, yielding a value difference closer to 15%.
The Court ultimately accepts the qualitative evidence that Rouge fits within the “low-cost family” and offers a lower-value cabin experience than Air Canada mainline. It also accepts that there is a real value difference, but, for quantification, it prefers the adjusted 15% figure. That figure both corrects the methodological flaw identified by Kincaid and aligns with Air Canada’s own 15% discount offered to affected passengers.

Finding of contractual fault and application of consumer protection norms

Having interpreted the Tariff and assessed the expert evidence, the Court holds that Air Canada committed a contractual fault. Passengers had contracted for a specific combination of aircraft and service level characteristic of Air Canada mainline. By transferring them to Rouge without providing an appropriate monetary adjustment, Air Canada failed to render the services for which the members had bargained and paid.
In the consumer context, the Court further notes that Québec’s consumer protection statute imposes an obligation that services be conforming to the contractual description. Selling a mainline Air Canada product but delivering a lower-value Rouge service without reduction in price breaches that obligation as well. The availability of three options (cancellation, rebooking or future discount) did not cure the underlying contractual non-conformity in circumstances where the Tariff itself conceives of aircraft/class substitutions as disturbances warranting a refund of the price difference.
As a remedy, the Court determines that members are entitled to a reduction of their payment obligation corresponding to the quantified value gap. On the evidence, that reduction is set at 15% of the price actually paid for the affected ticket.

Force majeure: evaluation of the 737 MAX grounding

Air Canada advanced a force majeure defence, arguing that the Transport Canada grounding order was an unforeseeable and external event that made it impossible to perform its contractual obligation to operate flights using the 737 MAX with the originally marketed cabin experience.
The Court accepts that the grounding order was indeed unforeseeable and external; however, force majeure in Québec also requires irresistibility in the sense of making performance objectively impossible. The evidence showed that Air Canada responded to the grounding by redeploying fleet resources, using Rouge aircraft, entering wet and dry lease arrangements with other carriers and adjusting its schedules. It publicly reported that about 96% of its planned flights had been “protected” through these measures.
In light of these facts, the Court finds that the grounding made performance more complex and more expensive but did not render it permanently impossible. Air Canada never ceased operating as a carrier, and nothing in the record suggests a complete inability to honour its contractual duties; rather, it chose particular ways of mitigating the disruption, including the controversial transfers to Rouge. Accordingly, the defence of force majeure fails, and Air Canada remains liable for the contractual consequences of the changes it implemented.

Damages, mode of recovery and evidentiary shortcomings

The plaintiffs’ theory of damages evolved over time. Initially, consistent with the authorization decision, they sought an order requiring Air Canada to pay each class member an amount equal to a minimum of 15% of the total ticket price, with collective recovery. Later, after Roy’s 25% valuation, they sought to convert this into a collective monetary award based on an aggregate damages figure.
In Québec, collective recovery requires evidence establishing with reasonable precision the total amount of the class’s claims, even though the identities and individual amounts need not be known. The Court emphasizes that the burden lies with the plaintiffs and that this assessment must be made on the basis of the proof presented at trial.
The plaintiffs had obtained data during discovery showing, for example, that 6,118 flights had been transferred from Air Canada to Rouge between March 2019 and early 2021. However, they did not obtain, before trial, the underlying passenger-level data: the total number of affected passengers and the actual total ticket revenue associated with the transferred flights. They attempted to elicit this information at trial through the testimony of Air Canada’s network planner, who explained that such data could be extracted from the airline’s databases but would require substantial effort and time.
Realizing partway through trial that they lacked the necessary concrete figures to support collective recovery, the plaintiffs sought and obtained leave to amend their conclusions to claim a specific aggregate amount, $117,900,000, and tendered a last-minute supplemental expert report by Roy estimating that figure. The report was prepared in one evening and attempted to infer the total number of passengers and total revenue by applying average load factors and yields, and then applying Roy’s 25% loss-of-value factor to that estimated revenue base.
The Court admits the supplemental report but finds that it has no probative value. Roy candidly acknowledged his discomfort with the methodology and conceded several significant assumptions and errors: he had assumed that all tickets were round-trip, which likely doubled the actual value; he applied system-wide averages that may not reflect the actual mix of routes and fares; and he did not adequately exclude passengers or fare categories not truly within the class definition. These flaws mean the $117.9 million figure is, at best, an inflated upper bound rather than a reasonably precise aggregate estimate.
Given this, the Court holds that the plaintiffs failed to establish with sufficient precision the total amount of the class’s claims and therefore cannot obtain collective recovery. It refuses to use its procedural powers—such as ordering further evidence post-trial or splitting the instance—to compensate for what it characterizes as a strategic or preparation failure by the plaintiffs’ side. The principle of the “unicity of the trial” must prevail: the mode of recovery is part of the overall merits and must be decided on the basis of the evidence heard.
The Court does, however, fix the per-member damage formula: each qualifying class member is entitled to a refund equal to 15% of the price actually paid for the affected ticket (or tickets), plus legal interest and the statutory additional indemnity calculated from service of the action. Recovery is ordered on an individual basis, with the precise modalities to be determined at a subsequent hearing. The Court notes that practical measures—such as ordering Air Canada to provide lists of affected passengers and contact details—may be considered at that later stage to facilitate the claims process.

Class definition and geographic limitation

Another important aspect of the judgment is the redefinition of the class. The original authorization granted a national class, and in their pleading the plaintiffs made sweeping reference to the common law and to consumer protection statutes of other provinces and territories, asserting that these were broadly similar to Québec’s framework. They did not, however, plead or prove in detail the content of those other jurisdictions’ laws, nor provide expert or documentary evidence on their application as required by article 2809 of the Civil Code when invoking foreign (including extra-provincial) law.
Citing recent appellate guidance, the Court holds that generic references to “rules of common law” and to provincial consumer laws are insufficient even at the authorization stage, and a fortiori at trial. In the absence of properly established extra-provincial law, the Court cannot simply assume that contractual and consumer-law principles are identical across Canada and cannot apply Québec law to residents of other provinces without a solid choice-of-law basis. As a result, it narrows the class to persons in Québec only.
The Court also revisits the temporal scope of the class. Although the original period extended from 13 March 2019 to 1 February 2021 (the reinstatement of the 737 MAX), the evidence shows that the COVID-19 pandemic drastically altered operations from mid-March 2020 onwards, with widespread suspension of flights and changes to how aircraft were scheduled. In practice, after mid-March 2020 there were no longer passengers who had purchased Air Canada mainline 737 MAX tickets and later were moved to Rouge flights because of the 737 MAX grounding. Accordingly, the Court closes the class period on 15 March 2020.
The final class is therefore defined as all natural persons in Québec who purchased an Air Canada ticket, with departure or transit between 13 March 2019 and 15 March 2020, whose flight was transferred to Rouge (A319, 767-300 or A321) following the 737 MAX grounding, and who did not receive unconditional monetary compensation.

Outcome, successful party and monetary result

In its dispositive orders, the Court allows the class action and finds Air Canada liable in contract and, in the consumer context, under Québec’s consumer protection legislation. The plaintiffs and the defined class are the successful party. Air Canada is ordered to pay each member an amount equal to 15% of the price actually paid for the affected ticket or tickets, with legal interest and the statutory additional indemnity running from service of the action. The Court chooses individual, not collective, recovery, and convenes the parties to a further hearing to set the practical modalities for liquidating individual claims. It also grants the plaintiffs their costs, including notice costs, execution-related costs and the main expert fees for Professor Roy, but excludes the fees associated with his last-minute supplemental report, given its lack of probative value.
Because the Court orders compensation on a formula basis (15% of each member’s own ticket price) without fixing the number of claimants or the aggregate ticket value, the total monetary amount in favour of the successful party cannot be determined from the judgment itself; it will depend on how many Québec class members come forward in the individual recovery phase and what they each paid for their tickets.