I know. The line of discussion started when Una suggested that they should be banned from flying for life in post #38, not due to any perception that this has actually happened, or would happen.
No one is making that argument. If Air Canada wants to ban them from their airplanes, they are certainly able to do so. I still think that a lifetime ban is excessive, but it’s not my place to force Air Canada to do business with anyone.
The argument is against a complete lifetime flying ban.
I really do get what you’re saying, but seriously… “I got shitfaced and attacked a flight attendant on company money, lost my cushy job and now I can’t get an equally cushy one because I’m not allowed to fly.” sounds an awful lot like the setup for a “first world problems” joke, and I’m just not feeling the sympathy for these guys that you do.
Have a look at Cimpean v. Payton, 2008 CanLII 32808 (ON SC), in which the court found that the argument that the good behaviour clause of an employment contract may be sufficient to attract vicatious liability to the employer despite the bad act otherwise having nothing to do with the employer. This is about as close as you’re going to find to the RIM matter. Then have a look at the decision by a higher level court in that same matter, Cimpean v. Payton, 2008 CanLII 60976 (ON SC), in which that lower court’s decision was shot to hell by the higher court:
What it comes down to is proximity. I don’t think that there is sufficient proximity to make RIM vicariously liable for its senior executives getting shit faced and violent while on a business flight, despite there be a company policy requiring good good behaviour at all times.
Except for the risk of being decapitated by a fellow passenger (Prairies), or being stabbed by a fellow passenger (Wawa – I declined the file), or the bus being rolled over by a fellow passenger (TBay – I was in on the Coroner’s inquest). I think I’d prefer my chances with violent, drunk RIM executives.
I wonder if drinking some barrier cream prior to drinking beer might do the trick at preventing the absorption of alcohol? 
I don’t feel any sympathy for them. As I said before, my preference would be that no one should drink any alcohol ever and that this incident just confirms my view. I just think your “solution” is unjust. I don’t have to have any sympathy for someone to understand that they shouldn’t be oppressed out of a sense of recreational outrage. There are people who kill other people who don’t face a lifetime ban on airline travel.
I have tried and tried but I don’t even know how to respond to this non sequiter.
First I would have to say that is what I would do, but I can imagine that these two boneheads are probably acting on advice of counsel and shutting up. But I do notice a disparity in what the papers reported on being some sort of altercation between the two boneheads and the flight crew and having to restrain them for the duration.
They have some sort of donneybrook on the plane with the flight crew, get restrained, most likely with the aid of other passengers and yet they dont as far as I could read, have a date to appear in court for assault or a number of different things that I would think they could have gotten nailed with, some how they just walked out of RCMP detention, with a court ordered mandate to pay restitution.
So while I dont condone what they did, I might be thinking of forcing a suit just to publicize exactly what escalated this situation to a physical donneybrook and take my chances.
Declan
The point is that a lifetime ban is excessive.
If a murderer can be considered to have rehabilitated enough to be released out into general society after a few decades, why does a guy who gets drunk and starts a fight on an airplane need a lifetime ban? Surely, if murderers can be reformed in 20 years, so can these jerks.
They appeared in court on November 29. Cite from the Globe and Mail of Friday, December 2, 2011:
“Mischief” is a crime under section 430 of the Criminal Code.
It looks like they put these guys into a courtroom as soon as possible. (Not unusual, IME, for a person arrested and held in custody.) It would have been a docket court, where they could plead guilty and receive a sentence on the spot; or plead not guilty, and schedule a trial. Obviously, they opted not to have a trial, instead pleading guilty; and getting suspended sentences, a year’s probation, and the restitution order. So they have already had their day in court.
I means that punishments should be proportionate to the severity of the trespass. You don’t impose a severe curtailment on someone’s freedom of movement without a proportionate crime or threat from that person.
Against RIM? Just how would RIM have escalated the situation? Or perhaps you were referring to Air Canada, but given that the drunks already pled guilty, and thereby would have had to have admitted the material facts in court, I don’t see much hope for them in then going after Air Canada. What I do see is a nuisance suit. Our courts usually have the loser pay much of the winner’s legal fees (costs), and if it is a nuisance suit, then often all of the winner’s legal fees. In this matter, I would expect that the court would order that the drunks pay enough money up front into court to cover the anticipated legal costs of the defendant(s). I think that an action against RIM or Air Canada, or the distillery, or the maker of the ties that cut off the circulation to the drunks’ brains, would be a good way for the drunks to go bankrupt while further embarassing themselves and advertising to potential employers just how very bad their judgment is. They could make further fools of themselves at great cost to their pocket books and future careers, or they could simply man-up.
Me too. I’m having a hard time finding a cause of action against Air Canada or RIM.
Air Canada against RIM? No, AC will be paid their restitution, and the matter will end. I cannot see any other claim they might have. The unscheduled stop and all expenses cost about $70,000, and that’s what AC will receive under the restitution order. After payment, Air Canada will be square, in other words.
Passengers against Air Canada? No, AC did its best to accommodate the passengers in Vancouver at no cost to those passengers. Then, the passengers got where they were going as quickly as possible under the circumstances, as per their contract with Air Canada. Ignoring this incident, look at something similar: if there had been something else that required a landing in Vancouver (say, a mechanical problem with the aircraft), would the passengers have a right to sue AC? I don’t think so.
Passengers against RIM? No, I think RIM (the corporation) is too far removed from this debacle. It may have been their employees’ fault, but I don’t think respondeat superior would apply here. Besides, those troublesome employees have been ordered to pay restitution.
Declan, just because I’m interested: who do you think should sue whom, and why?
Careful what you say, Declan, for one wrong word and we’re going to sue Gorsnak.
Okay. All of the above is true. I’m sure I’m not faster, steadier or whatever when it comes to standing in a long line, moving forward slowly, lifting a 20lbs bag over my head, sitting down and then buckling a seat belt. I’m exactly as fast and the persons in front of me. These are not complicated tasks, beers or no beers.
At my age I’d hope I a: know my limits and b: know when not to exceed them. The only people on the aircraft that matter are the crew. If they think I’m okay to fly that’s all that matters. I’ve never had an issue, ever. This is a moot point unless we fly somewhere together (I vote Canaries!) … I say others can’t tell I’ve drank or not. If they can, I am reasonably certain, it has no effect on them whatsoever …
Listen, my love of beer is YOUR fault you damned German!!! Kidding (But really I love your biers!). Other than the fear of flying (which thankfully I don’t have) part, you are exactly right. There are better things you can do to ensure you sleep through a flight. I have and will again use sleeping pills. But normally I like to have beers and jump aboard, the only person I’m affecting is me.
Sure there are seat neighbors that suck regardless of drinking …
Outside of pilots and crew, who should not have alcohol in their systems at all while on duty, I really don’t think a drink or two will seriously impair most people. Outside of those with medical issues (including addiction) one beer, or even two (well, maybe a problem for the small of stature) is not going to prevent them from evacuating if required in a timely manner. Nor does it turn them into belligerent, combative jerks.
Based upon that, I can only conclude that the two executives in question had more than a drink or two apiece. If it took the whole flight crew to get them under control there were certainly out of control, which implies a lot of drink, and being irresponsible enough to render themselves incompetent in public. Any way you slice that, it’s bad.
(While, personally, I’d prefer no alcohol on board airplanes at all, I acknowledge that’s a personal preference and so long as it is permitted by the Powers That Be I won’t say jack about it on the airplane. If my fellow passengers can keep themselves well behaved they can drink. I’d also prefer they not drink themselves either sick or unconscious, as I view that as a safety issue not just for them, but for those of us who might have to climb over them in the event of a Serious Problem.)
It’s possible that these two were on the “Instant Asshole – Just Add Alcohol” end of the bell curve. If so, it was incumbent upon them to abstain while in public (unless this was their very first experience with alcohol, which I rather doubt).
I want to take a different approach with a couple of points:
There are sure to have been court cases where the facts much more closely
resemble those of the matter we are discussing.
The differences in fact between Cimpean v Payton and our *Passenger v RIM *
are so great as to render Cimpean irrelevant, assuming the RIM drunks were
taking a business trip, and not a vacation.
Cimpean defendants Payton, Caffey and Cassel were NBA players at the time
of the incident leading to the court case.
From link (A) above:
Cimpean plaintiffs held that liability was imputed to the NBA team and league
for systematic failure to enforce the morals clause section of the standard NBA
contract thus promoting habitual lawless bahavior by its employees, and for
knowing that the specific defendant players were a danger to the public, but
failing to take measures to correct their behavior.
However, Payton et al were not fulfilling any work requirement by going to
a strip joint, and the (B) appellate court ruled that this fact was overridingly significant.
In contrast, if the RIM drunks were on a business trip, then the flight was a work
requirement: they had to make the flight to fulfill their duties as employees.
Therefore They were in the course of employment-connected activity during the
entire flight.
Now, suppose Payton and the others had been flying to play in an NBA game
and had gotten drunk and disorderly and forced a premature landing. I cannot
imagine any reasonable court ruling the NBA team and league to be exempt
from vicarious liability. And suppose on the other hand some mishap had forced
the RIM execs’ plane to make an unscheduled 24-hour return to Vancouver,
and the execs had taken the opportunity provided by the extra time off to
get into a brawl in a strip joint. I cannot imagine any reasonable court ruling
RIM to be vicariously liable, since although phyical the execs’ presence was
required on a plane flight, it was not required in a strip joint.
Sufficient proximity to RIM’s enterprise as an employer is IMO beyond doubt.
The company morals clause is not ground for 3rd party recovery, either in the
case of RIM or the NBA, but it is not needed to provide such ground in the RIM case.
Please see reply #99 for reasoning that respondeat in fact should apply.