Breaking Down "Force Majeure"

Summer vacation is fast approaching, and many families are taking the opportunity of their children's school break to travel abroad. This year, due to ongoing instability in the Middle East affecting fuel supply, airlines have not only imposed additional fuel surcharges on passengers, but some routes have also been cancelled — inevitably disrupting travelers' original plans.

When a traveler's itinerary is delayed due to an airline's "force majeure" event, they are not necessarily entitled to compensation — let alone when the "victim" isn't even the airline's own passenger, but merely an affected third party. For this reason, the appeal case below, in which the appellant achieved an initial victory, is genuinely remarkable.

In the case Singh v. Air Canada, 2026 ONSC, the appellant had paid for airline tickets on Air Canada for her sister and niece, planning for them to depart from Winnipeg, Manitoba on December 3, 2023, connecting through Toronto and Munich, Germany, to attend an important family wedding in New Delhi, India. Under the original itinerary, after arriving in New Delhi, they still needed to catch a domestic connecting flight on another airline to Varanasi.

Unexpectedly, the day before departure, Munich Airport in Germany was forced to close due to an extreme snowstorm. Although the airport had already announced it had resumed operations by the day of departure, the Air Canada flight in question was unable to land in Munich as scheduled, and was instead diverted to St. John's, in Newfoundland, Canada.

This diversion triggered a chain reaction: the two travelers were forced to fly from St. John's back to Toronto, and then fly directly from Toronto to New Delhi. By the time they arrived in New Delhi, they had already missed their domestic connecting flight to Varanasi. Worse still, their carry-on baggage did not arrive with them, and was not delivered until 9 days later. During the long delay and wait, the two travelers had no choice but to pay out of pocket for a hotel and purchase a large number of daily necessities to replace their stranded luggage. All of these additional hotel and emergency living expenses arising from the flight delay were, in fact, fully advanced by the appellant, who had purchased the original tickets.

Afterward, in order to seek justice and simplify the litigation process, the appellant's sister and niece signed a formal written assignment of rights pursuant to the Conveyancing and Law of Property Act ("CLPA"), transferring their claims for damages against Air Canada to the appellant for $10.

Facing the lawsuit, Air Canada brought a motion seeking to strike out the claim outright. Air Canada raised three main grounds of defence. The Small Claims Court, in its ruling, fully accepted Air Canada's arguments and struck out the action outright.

The trial judge ruled as follows:

1. The CLPA governs only "real property and interests therein," and does not apply to "personal rights." Accordingly, the assignment of rights obtained by the plaintiff under that Act was invalid.

2. This case "bore the hallmarks of maintenance and champerty." The judge stated that the plaintiff's motive was to "seek commercial gain," buying a $35,000 lawsuit for $10, which amounted to improper interference in someone else's dispute.

3. This case "disclosed no reasonable cause of action, and was purely a waste of time, frivolous, and an abuse of the court's process."

Having found the assignment invalid and that the plaintiff lacked standing to sue, the judge closed the case outright and ordered the plaintiff to pay Air Canada $1,800 in costs.

Dissatisfied with this ruling, the plaintiff appealed to the Divisional Court.

In its ruling, the Divisional Court found that the trial judge had committed "a series of obvious errors of law" in his legal analysis.

1. Error regarding the application of the CLPA

The trial judge and Air Canada's counsel had insisted that the CLPA governs only land and real property. The Divisional Court directly cited the statutory definition in section 1 of the CLPA:

• "Property" includes both real and personal property, debts, a thing in action (i.e., a debt or right to sue), and any other right or interest.

This makes clear that the legislature had long established that the CLPA's scope of application extends to the assignment of intangible property, including causes of action. Air Canada's counsel, during oral argument at the appeal hearing, also conceded that the trial judge had erred in his application of the law on this point.

2. Misjudgment regarding "maintenance and champerty"

The Divisional Court set out the following explanation of the historical and modern development of the common law doctrines of "maintenance and champerty":

• Maintenance: refers to a person who, out of an improper motive (often described as wanton or officious intermeddling), involves themselves in someone else's litigation in which they have no legitimate interest, and where such involvement lacks proper justification or excuse.

• Champerty: is a more egregious form of maintenance, where a third party intervening in another's litigation seeks to "share in the profits" of the eventual recovery.

The court emphasized that "motive" is the decisive factor in determining whether conduct amounts to maintenance or champerty. Only where a person acts out of an improper motive (such as maliciously stirring up litigation) will the law prohibit such conduct.

The Divisional Court found that the trial judge's finding that the appellant was motivated by a desire for "profit" was entirely unreasonable:

1. The appellant brought the claim in order to recover the actual financial losses she herself had advanced on behalf of her family. Seeking to recover one's own actual out-of-pocket expenses is legally well-justified, and directly negates any inference of "maintenance."

2. The trial judge held that, because there was no loan documentation in this case, it did not constitute a valid "debt assignment," and was therefore invalid. The Divisional Court noted that it is well-established at common law that, as long as the assignee holds a pre-existing legitimate financial interest in the litigation, the assignment of rights is lawful and valid.

3. The Divisional Court specifically noted that the trial judge erred in finding that "the fact the plaintiff is related to the two travelers is irrelevant to this case." According to numerous judicial precedents, a family relationship can, in itself, constitute a legitimate motive for becoming involved in litigation.

For the reasons above, the Divisional Court ruled in favour of the appellant, set aside the Small Claims Court trial judge's order striking out the action, and remitted the case back to the Small Claims Court for trial.

The Divisional Court judge also ordered Air Canada to pay the appellant $7,000 in costs of the appeal — a response by the Divisional Court judge to Air Canada's "aggressive and unforgiving" treatment of the plaintiff at the Small Claims Court level.

This ruling reaffirms a core principle of judicial fairness: large airlines must not be permitted to use their deep financial resources and complex common law doctrines (such as the doctrine of maintenance) to intimidate or block ordinary citizens who are simply trying to help their family recover a few thousand dollars in actual travel-related losses. The assignment of rights is a legitimate tool for simplifying litigation and improving judicial efficiency in Small Claims Court, and it deserves to be protected.