11 The decision of the court was given by Selya J. Inter alia he said this:
"The single substantive issue presented in this appeal is whether the plaintiff was injured while 'embarking', within the meaning of Article 17. The Supreme Court has not yet had occasion to define the words 'embarking' or 'disembarking' in the context of Article 17. The court has generally read Article 17 parsimoniously. See eg Eastern Airlines Inc v Floyd (holding that Article 17 does not allow recovery for harm unaccompanied by some physical manifestation of injury); Air France v Saks (adopting restrictive definition of 'accident' for the purposes of Article 17). This restraint is entirely understandable as Article 17 provides for strict liability, and there are sound policy reasons to confine that liability to the letter of the text, narrowly construed.
...
The terms 'embarking' and 'disembarking' are not infinitely elastic, and we believe it is quite probable that, when the occasion to interpret those terms arises, the court will prove to be similarly restrained in defining them. cf Chan v Korean Airlines Limited (holding that article 3(2) deprives a carrier of the Warsaw Convention's Article 3 damages limitation only if the carrier fails to deliver a ticket altogether).
Given the historical record and the signals that the Supreme Court has sent, most courts have interpreted the terms 'embarking' and 'disembarking' to connote a close, temporal and spatial relationship with the flight itself. In the process, these courts have found a three-pronged inquiry to be useful. The inquiry focuses on (1) the passenger's activity at the time of the injury, (2) his or her whereabouts when injured, and (3) the extent to which the carrier was exercising control at the moment of injury. [His Honour then provided authority.]
We, too, have noted that such considerations are highly relevant in determining the applicability of Article 17. See Martinez Hernandez. We do not view the three factors, activity, location and control as separate legs of a stool, but, rather, as forming a single, unitary base. In the last analysis, the factors are inextricably intertwined. cf Evangelinos (observing that control 'is an integral factor in evaluating both location and activity').
What is more, the language of Article 17, which speaks to accidents that occur 'in the course of any of the operations of embarking', strongly suggests that there must be a tight time between an accident and the physical act of entering an aircraft. See Martinez Hernandez (concluding that the drafters of the Warsaw Convention understood embarking 'as essentially the physical activity of entering' an airplane); see also Evangelinos. This 'tying' concept informs location as well as activity. Consequently, for Article 17 to attach, the passenger must not only do something that, at the particular time, constitutes a necessary step in the boarding process, but also must do it in a place not too remote from the location at which he or she is slated actually to enter the designated aircraft. See Martinez Hernandez.
In applying these principles to the case at hand, we deem it useful to start by considering specific examples of accidents that have been found to come within the encincture of Article 17. Perhaps the most venturesome of the reported appellate decisions are Day and Evangelinos. When passengers had surrendered their tickets, passed through passport control, entered the area reserved exclusively for those about to depart on international flights, and queued up at the departure gate, a prerequisite to boarding, the Second Circuit ruled that they were engaged in performing a necessary step in the boarding process. Thus, Article 17 applied to an ensuing injury. See Day. Similarly, when passengers 'had completed virtually all the activities required as a prerequisite to boarding, and were standing in line at the departure gate ready to proceed to the aircraft, at the time of the accident, the Third Circuit failing to have been engaged in a necessary step in the boarding process. See Evangelinos. Hence Article 17 applied.
The case at Bar is of significantly different genre. The plaintiff here, unlike the plaintiffs in Day and Evangelinos, had yet to fulfil most of the conditions precedent to boarding; at the time of the accident she had not left the common area of the terminal, located the bus that would transport her to the vicinity of her assigned aircraft, reached an area restricted to travellers nor isolated herself from the throng of other passengers flying to other destinations. In addition, the activity in which the plaintiff was engaged at the time of the injury - proceeding on an escalator from one level of the terminal's common area to another - cannot in any sense be seen as comprising a necessary step in the boarding process. In both Evangelinos and Day the only way passengers could have entered the designated aircraft was to pass through the departure gate at which the injury occurred. See Evangelinos. In sharp contrast, the record in this case does not contain the slightest hint that the plaintiff could only have reached her assigned aircraft by taking the particular escalator from which she fell.
Last - but far from least - the accident here, unlike Evangelinos and Day, happened at a considerable distance from the departure gate and well before any actual departure was possible. In other words, plaintiff's fall was far removed from the act of embarkation both temporarily and spaciously. Most importantly, it took place in a part of the terminal not restricted to passengers. We believe it is no mere happenstance that the plaintiff has not cited - and we have been unable to deter rate - a single instance at which Article 17 has been found to cover an accident that occurred within the public area of the terminal facility."