COURT FILE NO.: 472/09 and 484/09
DATE: 20091020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARIANA STEFANOVA STRUGAROVA, MIROSLAV PAVLOV KISSIOV and STEFAN MIROSLAVOV KISSIOV
Plaintiffs
- and -
AIR FRANCE, GREATER TORONTO AIRPORTS AUTHORITY, NAV CANADA, ALAIN ROSAYE, FRÉDÉRIC NAUD, GOODRICH CORP. and AIRBUS S.A.S.
Defendants
Brian J. E. Brock, Q.C., for the Plaintiffs
Timothy Trembley and Susan Guzzo, for the Defendants, Air France, Alan Rosaye and Frédéric Naud
Pat Floyd, for Nav Canada
HEARD at Toronto: October 20, 2009
JANET WILSON J.: (Orally)
[1] On January 26, 2009, Roberts J. exercised her discretion in the unusual facts of this case to re-open the motion with respect to the jurisdiction of the Ontario Court. She allowed new evidence with respect to whether the Montreal Convention, which was incorporated into the laws of Canada by the Carriage by Air Act, R.S.C. 1985, c. C-26, Schedule VI, applies in the facts of this case (“the Fresh Evidence Decision”). The defendants seek leave to appeal from the Fresh Evidence Decision and rely upon rules 62.02(4)(a) and (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] For the reasons outlined, the motion for leave to appeal is dismissed.
Background Facts
[3] The plaintiffs’ action arises from the overrun of the Air France aircraft at Toronto Pearson International Airport on August 2, 2005. The plaintiff, Mariana Stefanova Strugarova, was a passenger injured in the accident.
[4] Roberts J. heard the motion brought by the Air France defendants challenging the jurisdiction of the Ontario Court. She released reasons in the jurisdiction motion on February 2, 2009 (“the Jurisdiction Decision” and “the Jurisdiction Motion”). She concluded in the Jurisdiction Decision that the Ontario Court was the appropriate forum to determine this dispute, in accordance with the common law principles, and not as a result of the application of any convention.
[5] Prior to signing the order for the Jurisdiction Decision, the plaintiffs sought to re-open the motion to introduce fresh evidence with respect to whether the Montreal Convention applied to the facts of this case.
[6] The circumstances giving rise to this request began with a letter. On April 1, 2009, counsel for Nav Canada, one of the defendants in this proceeding, wrote to counsel for the plaintiffs and the defendants and confirmed that Regulation EC No. 889/202 of the European Parliament and of the Council of 13 May, 2002 (“2002 Regulation”) may apply to this case.
[7] In 2002, the European Community confirmed that they were bound by the Montreal Convention for all domestic airlines including Air France. The Air France flight in question stopped in Paris.
[8] The April 1, 2009 Nav Canada letter asserts that as a result of the 2002 Regulation, the Montreal Convention may well apply in this case. The existence and effect of the 2002 Regulation was not specifically considered by the motions court judge in the Jurisdiction Motion.
[9] The plaintiffs had conceded part way through the Jurisdiction Motion that the Warsaw Convention applied. That concession may be misguided.
[10] In the Jurisdiction Motion, the motions judge decided that the Ontario Court had jurisdiction, as Air France had attorned to the jurisdiction, and also pursuant to her inherent jurisdiction to prevent a miscarriage of justice.
[11] If the Montreal Convention applies, the plaintiffs have a further argument to advance as to why Ontario is the appropriate form to determine this dispute. It appears that the plaintiffs reside in Etobicoke and residency triggers jurisdiction in accordance with the Montreal Convention.
Reasons of the Motions Judge
[12] The motions judge confirmed the usual principles to be applied when considering whether to re-open a motion and introduce fresh evidence. She outlined these principles at para. 4 of her reasons:
[4] The well known principles to be considered by the court in the exercise of its discretion to re-open a motion once an order has been made are as follows:
(i) Would the evidence, if presented to the court at first instance, probably have changed the result?; and
(ii) Could the evidence have been obtained before the hearing and disposition of the motion by the exercise of reasonable diligence?
(671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001), 2001 SCC 59, 204 D.L.R. (4th) 542 (S.C.C.); [2001] 2 S.C.R. 983, at paras. 20 and 59)
[13] This test applies and makes sense for situations where a party seeks to introduce evidence to bolster a position on the facts. The jurisdiction to re-open to submit further evidence on the facts must be exercised exceedingly sparingly as reflected in the existing case law. Otherwise, cases would never end.
[14] The two part test in Sagaz is less useful in the circumstances of this case. This new evidence is not to bolster a factual position, but rather to assist in determining a preliminary matter: does the Warsaw or the Montreal Convention apply? The motions judge correctly confirms at para. 7 of her reasons that to maintain the integrity of the system in exceptional cases matters may be re-opened:
[7] I do not accept the narrow interpretation suggested by the Air France defendants that the special circumstance or miscarriage of justice contemplated must be tantamount to a fraud on the court or its equivalent. The court has a wider discretion to re-open a matter where the integrity of the process is at risk or a principle of justice is at stake that required the reconsideration of the matter; Degroote v. Canadian Imperial Bank of Commerce, [1998] O.J. No. 1696 (Ont. C.J. Gen. Div.), at para. 9; aff’d, 1999 4115 (ON CA), [1999] O. J. No. 2313 (C.A.). While a court should re-open a motion or other matter sparingly and with the greatest of care, it may re-open it when it is just to do so in exceptional circumstances.
[15] The Court of Appeal in Degroote at paras. 3 and 4 confirms that in exceptional circumstances the reasonable diligence requirement will be relaxed. The motions judge was not able to conclude based upon the evidence before her that the new evidence may change the result, as to make such a determination requires an interpretation of the 2002 Regulation and expert evidence with respect to the issue.
[16] To succeed on the motion, the plaintiffs’ counsel concedes that he will have to obtain such evidence to assist the motions judge. As the motions judge points out again in the unique facts of this case, her determination of this issue may have implications in other cases.
[17] This discretionary decision grapples with applying the correct convention, which is the starting point of the analysis on jurisdiction. This is not an attempt by the plaintiffs to simply bolster contested facts.
Conclusions
[18] There is no conflict in the case law. The cases and conclusions reached whether or not to re-open need to be considered in light of the facts and issues in the cases. Therefore, I conclude that rule 62.02(4)(a) does not engage.
[19] Further, there is no reason to doubt the correctness of the motion court judge’s decision. To the contrary, I agree with her. As counsel for the defence points out the plaintiffs were already successful in the jurisdiction motion. Re-opening the issue only adds a further argument in support of the Ontario Court having jurisdiction in this case. Rule 62.02(4)(b) does not apply.
[20] The Jurisdiction Decision is being appealed to the Court of Appeal. It makes practical sense for all issues to be dealt with by the motions judge prior to the matter proceeding to the Court of Appeal. For these reasons, the application for leave to appeal is dismissed.
Costs
[21] The plaintiffs’ counsel requests costs fixed in the amount of $5,600.00 including disbursements on a partial indemnity basis. Counsel for the defendants suggests a lower amount. In my view, the request by the plaintiffs is reasonable and I fix costs in the amount of $5,600.00, payable by the Air France defendants.
Cross Appeal
[22] The plaintiffs’ cross appeal on the costs award granted in favour of Air France, due to the plaintiffs’ inadvertence not bringing the argument forward when the matter was first heard, is a discretionary decision. In my view, the issue does not engage either of the Rule 62.02(4)(a) or (b). Therefore, the request for leave to appeal from the costs decision is denied.
JANET WILSON J.
Date of Reasons for Judgment: October 20, 2009
Date of Release: October 26, 2009
COURT FILE NO.: 472/09 and 484/09
DATE: 20091020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MARIANA STEFANOVA STRUGAROVA, MIROSLAV PAVLOV KISSIOV, STEFAN MIROSLAVOV KISSIOV
Plaintiffs
- and -
AIR FRANCE, GREATER TORONTO AIRPORTS AUTHORITY, NAV CANADA, ALAIN ROSAYE, FRÉDÉRIC NAUD, GOODRICH CORP. AND AIRBUS S.A.S.
Defendants
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: October 20, 2009
Date of Release: October 26, 2009