Time is Up – Plaintiff Cannot Amend Claim to Include Montreal Convention Claims After Expiry of Limitation Period

In a recent decision, the British Columbia Supreme Court confirmed that a plaintiff must plead a cause of action provided by the Montreal Convention in an action within the applicable limitation period. If a plaintiff fails to plead the Montreal Convention and instead relies on common law or statutory causes of action, he or she may be precluded from amending the claim after the expiry of the applicable limitation period.

In Spencer v. Transat A.T. Inc., 2022 BCSC 2256, a proposed class action was commenced against Air Transat and Flair Airlines for a series of alleged flight delays occurring over a period of two holiday travel seasons. The representative Plaintiff made no reference to the Montreal Convention in her Notice of Civil Claim. In its Response to Civil Claim, Air Transat pleaded that the Plaintiff’s action was exclusively governed by the Montreal Convention, which imposes a two-year limitation period.

The Plaintiff took no steps to amend the Notice of Civil Claim to plead a cause of action under the Montreal Convention until after the Court declined to certify the proceeding on the basis that the Plaintiff had failed to plead a viable cause of action. The Plaintiff had only pleaded causes of action in common law and pursuant to provincial consumer protection legislation. See our prior blog on this decision here.

In its decision declining certification, the Court struck the Plaintiff’s claims in common law (breach of contract and fraudulent misrepresentation) and pursuant to consumer protection regulations due to the well-established principle that the Montreal Convention is the only available cause of action in cases of delay during international air travel. The Court granted the Plaintiff leave to apply to amend the Notice of Civil Claim to plead a new cause of action under the Montreal Convention.

The Defendants opposed the application and argued that since more than two years had passed since the cause of action arose (the date of the scheduled arrival of the Plaintiff’s flight), the limitation period had expired.

Article 35 of the Montreal Convention provides:

The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

The Defendants contended that the limitation period in the Montreal Convention is a special type of limitation provision that operates to extinguish claims not brought within two years of the flight. The Defendants argued that it did not matter that the Plaintiff commenced the lawsuit six months after any cause of action arose because she failed to specifically plead the Montreal Convention within the limitation period.

The Court agreed with the Defendants’ arguments. It held that the Plaintiff failed to bring her claim in accordance with Article 35. The Court stated:

“Even though the plaintiff filed the NOCC within six months of the impugned conduct, I accept the defendants’ submission that the [Notice of Civil Claim] did not satisfy the requirements of Article 35 of the Montreal Convention as the convention was not pleaded.”

As a result, the only cause of action available to the Plaintiff (under the Montreal Convention) had been extinguished by the expiry of the two-year limitation period set out in the Montreal Convention. The Court dismissed the Plaintiff’s application to amend her claim.

This is the final part of a two-part blog series. Part one: Montreal Convention Exclusivity Confirmed by BC Supreme Court.

The authors of this article acted as counsel for the Defendant (and third party), Transat A.T. Inc., Air Transat A.T. Inc., and Transat Tours Canada Inc.

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