Osler acted for Nieuport Aviation, the owner of the terminal at Billy Bishop Toronto City Airport, in obtaining a judgment of over $130 million against Porter Airlines in the case of Porter Airlines Inc. v. Nieuport Aviation. This Commercial List trial was argued over a four-week period in late 2021 and early 2022, with judgment released on October 19, 2022.
The case addressed three key contractual issues: (1) the basis on which Porter is required to pay fees under its Licence Agreement with Nieuport; (2) whether Porter could rely on the force majeure clause in the Licence Agreement to avoid paying any fees during its voluntary 18-month suspension of service during the COVID pandemic; (3) whether it was “unreasonable” (as Porter alleged) for Nieuport to charge fees during the pandemic, and to charge the specific fees set out in the Licence Agreement. Nieuport’s position was accepted on each issue, and the case, which affirms and clarifies a number of important principles, is likely to stand as a leading precedent on the law of force majeure.
The Osler team was led by Adam Hirsh and Shawn Irving, with assistance from Sonja Pavic, Marleigh Dick, Jayne Cooke, Jesse Cohen and Lia Bruschetta (Litigation) and Jacqueline Code (Research).