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)

1On 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.

2On 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.

3Air 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?”

4The 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).

5Air 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.

6Air 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.

7With 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