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25 May 2011
In late March 2011 a motions judge of the Ontario Superior Court of Justice followed the majority of international jurisprudence on Article 29 of the Warsaw Convention by holding that claims which are not commenced within the prescribed two-year time limit should be summarily dismissed, notwithstanding provisions in the local law permitting minors and persons under a disability to have the time limit tolled.(1)
The plaintiff in the case was Marwa Sakka, a 34-year-old woman suffering from cerebral palsy. In May 2003 Sakka was travelling with her mother on a return Air France ticket from Canada to Syria with a stop in Paris. The claim alleges that on arrival in Paris, the plaintiff's mother made several requests for assistance in transferring her daughter from her seat to a wheelchair, through the bridge, to the interior of the terminal where another wheelchair was awaiting.
The claim also alleges that these requests were not fulfilled, so the plaintiff's mother attempted to carry the plaintiff through the bridge herself. While doing so, the mother tripped on the uneven surface where the bridge meets the exit door of the aircraft, causing the daughter to injure her knees.
Sakka retained Jacques Gauthier (Ontario counsel) to seek damages from Air France after the incident, but Gauthier did not commence a claim within two years. In fact, a claim was not commenced until six years after the fall, when Sakka sued Air France for the knee injuries, as well as her former counsel for not bringing an action within the prescribed time.
Air France brought a motion for summary judgment as against it on the basis that the claim was barred by Article 29 of the Warsaw Convention. The plaintiff did not oppose this motion, but Gauthier did. He brought a cross-motion for a declaration that since the accident took place in France, French law applied - and that under French law, the claim could survive given that the Article 29 time limit was tolled because the plaintiff was under a disability.
In arguing this motion, Gauthier filed expert affidavit evidence from a French lawyer to the effect that "in France the 'law is clear' that Article 29 of the Warsaw Convention is a statute of limitations and is capable of being tolled by the minority or disability of the plaintiff pursuant to the French Civil Code". French jurisprudence supporting this statement was also submitted to the Ontario court for consideration on the motion.
As a secondary argument, Gauthier's counsel argued that there was no evidence that the Ontario courts had jurisdiction over the claim in any event because there was no evidence before the court regarding the circumstances in which the ticket was purchased.
The Ontario court was not persuaded by Gauthier's arguments. It commenced its analysis by citing the well-known jurisprudence standing for the proposition that the Warsaw Convention should be applied in a consistent manner internationally, without reference to the local laws of the high contracting parties. In this regard, the court cited the US Supreme Court's decision in El Al v Tseng (119 S Ct 662), as well as the House of Lords' decision in Sidhu v British Airways ( 1 All ER 193). On this point, the court also cited Article 31 of the Vienna Convention on the Law of Treaties, which requires that international treaties be interpreted in good faith, in accordance with their ordinary meaning in their context and in light of the object or purpose.
The court went on to consider the fact that Article 32 of the Vienna Convention permits an adjudicator to consider the preparatory work pertaining to a treaty where there is any ambiguity in interpreting the ordinary meaning of a treaty provision. In this regard, the Warsaw Convention preparatory papers show a clear desire on the part of the drafters to enact a liability regime which is to be applied uniformly in all participating jurisdictions.
The motions judge then turned to the issue of Article 29 more specifically. In this context, he considered the British Columbia Court of Appeal case of Gal v Northern Helicopters ((1999), 177 DLR (4th) 249), in which the court found that Article 29 is incapable of bearing more than one interpretation - and that attempts to extend the time to commence an action beyond the prescribed time should fail.
The motions judge noted that the approach in Gal is consistent with the US decisions in Fishman v Delta Airlines (132 F 3d (1998) (2nd Cir)) and Kahn v Trans World Airlines (443 NYS 2d 79; 82 AD 2d 696 (NYAD1981)). The motions judge observed that the "overwhelming weight of authorities supports the interpretation of Article 29 advanced by… Air France in the within proceeding".
In addressing the French law, which seems to contradict the international jurisprudence, the court noted that the Ontario court should "look to the decisions of courts of other countries for guidance; however, it is not bound to follow any decision of any particular country in interpreting a treaty".
In the end, with respect to the Article 29 argument, the court followed the reasoning in Gal and held that "the only matter to be determined… is whether the plaintiffs commenced the action within two years of the date specified in Article 29". They had not.
With respect to the Article 28 argument, the court found, somewhat questionably, that it was for Air France to challenge the jurisdiction of the Ontario courts, not Gauthier. In any event, on the facts of this case, there could be no question that the Ontario courts had jurisdiction to hear this case on a plain reading of Article 28 and the case law pertaining to the same. Balani v Lufthansa (2010 ONSC 3003) was cited on this point (for further details please see "Lack of wheelchair at aircraft held to be Article 17 'accident'").
The claim was summarily dismissed as against Air France - leaving the hapless Gauthier to fend for himself.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com).
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