A recent decision of the Supreme Court of Nova Scotia has upheld the application of Article 35 of the Montreal Convention and confirmed that it cannot be made subject to a provincial enactment which provides for the discretionary extension of a limitation period. The plaintiff, seeking an order to extend the limitation period, sought to rely on a rail case to justify the extension. The trial judge summarily and correctly dismissed this argument, but without delving into the history of limitation of action provisions in rail cases. This update considers the relation of the limitation provisions of the Railway Act to provincial legislation, and explains why analogous provisions in the Carriage by Air Act and related international conventions stand on a different footing.
Rita Lemieux sued Air Canada and the Halifax International Airport Authority for damages related to a fall. It was common ground that her bodily injury occurred in the course of boarding an international flight operated by Air Canada and that the Montreal Convention applied. Article 35 of the convention imposes a two-year limitation period which has consistently been found to be substantive and not merely procedural. The action was commenced some five-and-a-half years after the accident and accordingly the claim appears, on its face, to be barred.
The plaintiff sought to rely on Section 3 of the Nova Scotia Limitation of Actions Act, which vests in a court the discretion to disallow a defence based on time limitation and to "allow the action to proceed if it appears to the court to be equitable" to do so. The plaintiff sought application of this section and relied on Tate v Canadian National Railway, in which a predecessor of Section 3 had been invoked to defeat the limitation period provided for by the Railway Act. Reliance on Tate is surprising, as the reasoning in that case (although not the result) has been overruled by the Supreme Court of Canada.
The judge in Lemieux did not consider the constitutional issues affecting the rail and air legislative schemes, but concentrated on the international interpretation and international nature of the convention. The plaintiff seized on Article 35(2) to bolster her case. This paragraph provides that the method of calculating the limitation period "shall be determined by the law of the court seized of the case". Thus, the plaintiff argued, local law can be resorted to in order to extend the two-year period. The court rejected this argument, turning first to the decision of the English Court of Appeal in Laroche v Spirit of Adventure (UK) Limited. That case confirms that the only thing which the convention:
"leaves for determination by the court seized of the case is the calculation of the precise dates of the beginning and end of the relevant two year period and the determination of whether the action has been brought within that two year period."
The court also cited Fishman v Delta Airlines Inc for the same proposition.
With respect to the plaintiff's reliance on the Tate decision, the motions judge simply noted that the Railway Act "is not a statute dealing with international matters and [is] not intended to be a codification and harmonization" of the rights and obligations of carriers and passengers. Although this distinction points to the real nature of the difference between the rail and air regimes, the legal justification for the differing treatment is more complex.
The Tate decision pits the limitation provision of the Railway Act, a Canadian federal statute, against the predecessor of the Nova Scotia provision relied upon by Lemieux. In Tate the Nova Scotia Supreme Court thought itself bound to accept the constitutional applicability of the federal statute. As the Supreme Court of Canada would explain some four years later in the case of Clark v Canadian National Railway, this was an error. Having made this assumption, the trial court went on to find that the federal and provincial enactments could "stand side by side" with the provincial right to discretionary extension applying to the federal limitation period. That this was also an error is confirmed by the Supreme Court of Canada in Clark. The true position is that if the Railway Act limitation provision is constitutionally applicable, it would defeat the operation of any provincial statute in respect of any claim to which the federal statute properly applied.
The present rule in Canada is that an action in negligence against an interprovincial railway may be commenced at any time permitted by the laws of the province where the accident occurred, notwithstanding anything to the contrary in the Railway Act. On the other hand, any rights created by the act itself must be exercised subject to the conditions that it imposes, including the limitation of actions provision.
However, the Carriage by Air Act and the Montreal Convention stand on an entirely different footing. Whereas the Railway Act creates its own causes of action and leaves the otherwise applicable common law undisturbed, the convention regime is exclusive. For loss and damages incurred in international carriage by air, the passenger or shipper has those rights of action created by the convention – and no others. Accordingly, all claims against the air carrier are limited by Article 35, and provincial limitation enactments cannot be considered. The rule which applies in maritime cases is the same as that which applies in the air mode. In that case, the Supreme Court of Canada has confirmed that "tortious liability which arises in a maritime context is governed by a body of maritime law within the exclusive legislative jurisdiction of Parliament". In both cases, the right to limit the rights conferred come within the exclusive jurisdiction of Parliament as well.
For further information on this topic please contact Gerard A Chouest at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected]).