COURT FILE NO.: 393/04
DATE: 20050315
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, CAPUTO AND SWINTON JJ.
B E T W E E N:
AIR FRANCE
Applicant
- and -
SUNDAY OGBEIDE
Respondent
Gerard Chouest and Rinku Deswal, for the Applicant
No One for the Respondent
HEARD at Toronto: March 15, 2005
O’DRISCOLL J.: (Orally)
[1] On November 28, 2002, the respondent brought an action against Air France in the Small Claims Court at Toronto, claiming damages of $3,000.00. It is alleged by the respondent that Air France lost his baggage. The loss is alleged to have occurred in October, 1999.
[2] On January 9, 2004, Air France sought an order in the Small Claims Court dismissing the respondent’s action because the Warsaw Convention of 1929 is part of the law of Canada by way of the Carriage of Air Act and the Convention provides that the right to damages in the circumstances of this case is “extinguished” if an action is not brought within two (2) years of the date of arrival at destination.
[3] Air France alleges that the action is some thirteen (13) months too late with no right to extend the time limit. The Small Claims Court Deputy Judge said as follows when he adjourned the motion to the Trial Judge:
“The motion is dismissed without costs. Trial judge is in a better position to rule on the nature of the 2-year ban found in article 29(1) of the Warsaw Convention. Is it inflexible? Is it inflexible? Is detrimental reliance not applicable? I need a factual basis for any ruling. What actually happened? Should Air France be required to tell Plaintiff about limitation period?”
[4] The Small Claims Court Rules do not provide for any appeal of an interlocutory order. See Foster v. Pack-Tech. [1997] O.J. No. 4462, (Divisional Court).
[5] Air France has brought this application for judicial review of the interlocutory order because, in the words of counsel, the facts are not in dispute and the Deputy Judge was wrong in law.
[6] Air France asks the Divisional Court to grant extraordinary, discretionary relief, even though the Small Claims Court action has not been tried. Sections 6(1) and 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c.J-1 are discretionary. No reason has been shown to us why the matter should not proceed to trial. No reason has been shown why this case should be considered for judicial review. The application is dismissed.
[7] With the concurrence of my colleagues, I have endorsed the back of the Application Record: “This application is dismissed for the oral reasons given and recorded this date.”
O’DRISCOLL J.
CAPUTO J.
SWINTON J.
Date of Reasons for Judgment: March 15, 2005
Date of Release: March 22, 2005
COURT FILE NO.: 393/04
DATE: 20050315
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, CAPUTO AND SWINTON JJ.
B E T W E E N:
AIR FRANCE
Applicant
- and -
SUNDAY OGBEIDE
Respondent
ORAL REASONS FOR JUDGMENT
O’DRISCOLL J.
Date of Reasons for Judgment: March 15, 2005
Date of Release: March 22, 2005