Does the two-year limitation period stipulated by the Warsaw Convention for bringing an action pertain to the initial filing of the claim, or alternatively, to the filing AND service of the initiating documents on the opposing party? This was the question before the Ontario Superior Court of Justice in the recent case of Mosregion Investments Corporation et al. v. Ukraine International Airlines et al.
The action in question was a lawsuit related to the multi-million dollar litigation which followed the overrun accident of Air France Flight 358 at Toronto’s Lester B. Pearson Airport on August 5, 2005. The plaintiff initiated the action by filing a Statement of Claim with the Ontario Superior Court on August 1, 2007. However, the Statement of Claim was not served on several parties within the time frame required by Ontario’s Rules of Civil Procedure. On September 30, 2008, the plaintiff applied for and obtained an order extending the time for service of the documents on the defendants that had not yet been served.
The defendants appealed the order, arguing that the Warsaw Convention (which still governs some cases of international air travel) provided a strict two-year limitation period for bringing an action and could not be “interpreted or ‘washed down’ by Ontario procedural law”. They argued that since the documents were not served within the two years, the action was not “brought” in time under the Warsaw Convention, and should be dismissed.
The Judge noted that the plain meaning of “bring” or “brought” did not mean initiated AND served. Further, American and Canadian case authorities suggested that “bring” meant to commence or institute a legal proceeding and did not include service of the documents initiating the proceedings. Accordingly, service of filed documents outside of the prescribed two-year limitation was not contrary to the requirements of the Warsaw Convention.
The Judge confirmed that Ontario’s Rules of Civil Procedure explicitly allowed for the extension of time after the expiry of the time for service. As such, there was no error in the order for extension of time to serve the defendants.
This decision highlights the principle that while the Warsaw Convention/Montreal Convention regime may govern the substantive aspects of actions involving international air travel, questions of procedure and the method for calculating time will be determined by the law of the Court seized of the case.