In a recent decision, the Ontario Superior Court of Justice ruled that the two year limitation period to commence an action in Article 29 of the Warsaw Convention was not suspended because of a Plaintiff’s disability.
Ms. Marwa Sakka flew with Air France on May 23, 2003, from Toronto, Ontario to Paris, France. To board the flight, she was assisted by Air France personnel as she was seated in a wheelchair and required assistance to access her seat on the airplane. Upon arrival at Charles de Gaulle airport in France, the Plaintiff claimed that Air France personnel failed to assist despite numerous requests by her mother.
Because of Air France’s failure to assist, Ms. Sakka’s mother claimed that she was required to carry her daughter to the waiting wheelchair on the bridge. While doing so, she tripped on the uneven surface between the exit door of the plane and the bridge platform. In the resulting fall, Ms. Sakka sustained injuries to her knees.
Although the incident occurred on May 23, 2003, an action was not commenced until May 20, 2009. After Air France argued that Ms. Sakka’s cause of action was extinguished because the lawsuit was not commenced within two years (as required by Article 29 of the Warsaw Convention), Ms. Sakka added a claim of negligence against her former lawyer for failing to file the action in time.
Air France’s lawyer correctly argued that the two year limitation period in the Warsaw Convention had been consistently interpreted as a provision that should be applied strictly. Interestingly, counsel for Ms. Sakka’s former lawyer argued that since the accident occurred in France, the French interpretation of Article 29 of the Warsaw Convention should govern. French courts had ruled that the running of the two year limitation period in the Convention was suspended by the minority, disability or guardianship of a Plaintiff. Therefore, he argued that the Plaintiff’s mother, as Litigation Guardian of her daughter, could still bring an action after the two year deadline had passed.
Under Canadian law, a limitation period will also be suspended in cases where a person is a minor or incapable or substantially impeded in managing his or her affairs (under a disability).
In previous cases (not involving a plaintiff with a disability), Canadian courts had recognized that the two year limitation period in the Warsaw Convention is to be applied strictly. The Ontario Court noted that the French courts’ interpretation was out of the mainstream of the overwhelming majority of international interpretations of Article 29. Although Canadian courts can and often do look to the decisions of the courts of other countries for guidance in interpreting the Convention, they are not bound to follow the decisions of any particular country in interpreting a treaty. Therefore, the Court saw no reason to follow the French courts’ interpretation of Article 29.
Ms. Sakka’s claim was dismissed.