COURT OF APPEAL FOR ONTARIO
MOLDAVER, LANG and LAFORME JJ.A.
BETWEEN:
MUHAMMAD REFIK SHAH
Plaintiff
and
MALAYSIA AIRLINES and CATHAY PACIFIC
Defendants
Bruce Garrow for the appellants Malaysia Airlines et al.
Christopher Collins for the respondent Muhammad Refik Shah
Heard and endorsed October 15, 2007
On appeal from the order of Justice John G. Kerr of the Superior Court of Justice dated September 28, 2005.
ADDENDUM AND CORRECTION
APPEAL BOOK ENDORSEMENT
1On October 15, 2007, we disposed of an appeal between the parties by way of an endorsement as follows:
In our view, this was not a proper Rule 21 motion. The question of agency (which the respondent pleaded) and whether the respective airlines knew or did not know about each other’s involvement in the respondent’s travel arrangements were questions of fact that required evidence in relation to both Article 1(3) and Article 30(2).
Accordingly, the appeal is allowed and the motion is dismissed. Costs here and below reserved to the trial judge.
2Several weeks later, it was brought to our attention, not by the parties but by an unrelated third party, that our disposition did not accord with the appeal being allowed.
3Upon reviewing the endorsement, we realized that we had made a clerical error in that the endorsement should have read that we were dismissing the appeal (and the motion), albeit for reasons that differed from those given by the motion judge.
4The error was immediately brought to the attention of the parties and they were given an opportunity to make submissions as to the wording that should be substituted to correct our clerical error. To date, the parties have not been able to agree on such wording.
5Accordingly, having reviewed the various submissions and proposals put forward by the parties, we would amend our original endorsement to read as follows:
In our view, this was not a proper Rule 21 motion. The question of agency (which the respondent pleaded) and whether the respective airlines knew or did not know about each other’s involvement in the respondent’s travel arrangements were questions of fact that required evidence in relation to both Article 1(3) and Article 30(2).
Accordingly, for reasons that differ from those of the motion judge, the appeal is dismissed and the motion is dismissed. Costs here and below reserved to the trial judge.
Signed: “M. Moldaver J.A.”
“S. E. Lang J.A.”
“H. S. LaForme J.A.
