In another decision arising out of litigation over the August 2, 2005 Air France accident at Pearson International Airport, the Ontario Court of Appeal was called upon to interpret the limitation provision contained in article 29 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, 12 October 1929, 137 L.N.T.S. 11 (the “Warsaw Convention”). The Warsaw Convention, which is implemented in Canada by the Carriage by Air Act, R.S. 1985, c. C – 26, governs liability for the international carriage of persons and goods by air. Under Article 29 the Convention, “The right to damages shall be extinguished if action is not brought within two years, reckoned from the date of arrival at the destination….”
The plaintiffs sought damages from Air France and others for the destruction of documents that were being shipped on the Air France jet when it overran the runway during a thunderstorm and caught fire. Their notice of action was issued within the two year limitation period. The plaintiffs did not serve the claim on one of the defendants within the six month period for service provided under the Ontario Rules of Civil Procedure, however, so they had to move for an order extending the time for service. After being served, the defendant brought a motion before the Master for reconsideration. That motion was dismissed, and an appeal to the Divisional Court was also dismissed.
In the Court of Appeal, the defendant argued that the order granting an extension of time for service was improper because the statement of claim had expired due to the failure to effect service within the six months. In common law jurisdictions, expiration of a limitation period does not extinguish the underlying claim; rather, it raises a procedural bar that prevents the plaintiff from proceeding with the claim. The defendant argued that the two year limitation period provided by Article 29 of the Warsaw Convention was fundamentally different in character in that after two years, applying the language of Article 29, the right to damages is “extinguished”. It follows therefore, that when the six-month period for service passed, the statement of claim expired, and there was nothing for the court to revive.
In the view of the Ontario Court of Appeal, however, once the claim has been issued within the two year limitation period, the requirements of Article 29 of the Warsaw Convention have been satisfied. Since Article 28 the Convention provides that procedural matters are to be governed by the law of the court that is seized of the particular case, any subsequent procedural issues, including those involving time for service, are governed by the Ontario Rules of Civil Procedure. Case law interpreting those Rules has clearly established that the statement of claim remains extant after expiry of the time for service, and it can therefore be served if an order extending the time is granted.
Link: Mosregion Investments Corporation v. Ukraine International Airlines, 2010 ONCA 715
Richard Hayles, B.A., J.D.
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