ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-507257

DATE: 20140930

BETWEEN:

GEORGE NICOLAE TITULESCU
Plaintiff

– and –

UNITED AIRLINES INC.
Defendant

George N. Titulescu, self-represented

Clay S. Hunter, for the Defendant United Airlines Inc.

HEARD: September 30, 2014

PERELL, J.

REASONS FOR DECISION

[1] Pursuant to rules 21.01(1)(b), 21.01(3)(d) and 25.11, the Defendant, United Airlines, brings a motion for an Order striking the Amended Statement of Claim and dismissing George Nicolae Titulescu’s action on the grounds that the pleadings fail to disclose a reasonable cause of action and that the action is frivolous or vexatious or is otherwise an abuse of the process of the court.

[2] United Airlines makes four arguments. First, it submits that Mr. Titulescu’s action is barred by the doctrines of res judicata, issue estoppel, or abuse of process because he previously commenced an action in Ontario Superior Court (Small Claims) seeking relief for and alleging the same circumstances as this action and the Small Claims Court action was dismissed as abandoned by Order dated July 25, 2014. Second, United Airlines submits that Mr. Titulescu’s action is statute-barred because it was commenced on June 26, 2014 complaining of events that occurred on May 27, 2012 and the action was not commenced within the two years prescribed by Article 35 of the Montreal Convention, an international treaty incorporated into the laws of Canada by the Carriage by Air Act, R.S.C. 1985, c. C-26 which exclusively govern Mr. Titulescu’s action. Third, as an alternative to its second argument, United Airlines submits that Mr. Titulescu’s action is statute-barred under Ontario’s Limitation Act, 2002, S.O. 2002, c. 24, Schedule B. Fourth, United Airlines submits, in any event, that Mr. Titulescu has not pleaded a reasonable cause of action.

[3] For the reasons that follow, I agree with United Airlines’ second argument and I, therefore, dismiss Mr. Titulescu’s action without leave to amend. It is not necessary to comment further about United Airlines’ other arguments.

[4] Mr. Titulescu’s action arises because he was unable to use his return airfare for carriage on flights operated May 27, 2012 by United Airlines between Stockholm, Sweden and Newark, New Jersey, USA and between Newark, New Jersey, USA and Toronto, Canada because of injuries allegedly sustained due to a grand mal seizure while at Stockholm’s Arlanda International Airport on May 27, 2012.

[5] Mr. Titulescu claims that United Airlines was negligent in not providing assistance to him after his grand mal seizure at the airport; assistance that he claims he was entitled to based on his purchasing a ticket from United Airlines and on the “international law of Epilepsy associations across the world”.

[6] The Statement of Claim pleads the plaintiff was on an international journey of carriage by air departing Canada May 23, 2012 and returning to Canada May 27, 2012 with agreed international stopping places in Sweden and the United States. The Statement of Claim was issued June 26, 2014.

[7] Liability of an air carrier for passenger claims arising out of international carriage by air is governed by international treaties which are incorporated into the laws of Canada by the Carriage by Air Act. There are two treaty regimes in force in Canada, the Warsaw Convention, and amending Conventions and Protocols and the Montreal Convention, 1999.

[8] In Canada, the law associated with air travel has been governed by the Warsaw Convention and its various amendments. In the late 1990s, the international aviation community, under the auspices of the International Civil Aviation Organization, modernized and consolidated the Warsaw Convention into the Montreal Convention, 1999, more formally known as the Convention for the Unification of Certain Rules Relating to International Carriage by Air. The Montreal Convention retains the structure to the Warsaw Convention.

[9] Mr. Titulescu was traveling on a contract of carriage from Canada, returning to Canada, with agreed stopping places in Sweden and the United States. As such, his claim is governed by the Montreal Convention, since his contract of carriage satisfies the definition of “international carriage” in the Montreal Convention.

[10] The Montreal Convention is exclusive in respect of those claims that fall within its scope. Article 29 of the Montreal Convention provides:

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

[11] The scope of the Conventions is not limited to those circumstances where the Convention provides a remedy but rather includes all circumstances that involve the air carrier’s liability for damages arising from international carriage by air to which it applies: Air Canada v. Thibodeau, 2012 FCA 246 at para. 33; O’Mara v. Air Canada, 2013 ONSC 2931.

[12] Article 17 (1) of the Montreal Convention provides the basic strict liability provision for passenger bodily injury claims occurring onboard the aircraft or in the course of any of the operations of embarking or disembarking. It states:

The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

[13] Article 35 of the Montreal Convention sets out the time within which an action under Article 17 must be brought. It provides:

The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

[14] In Sakka v. Societe Air France, 2011 ONSC 1995, the court held that the two-year timeframe within which to commence an action under Article 29 of the Warsaw Convention is an element of the Convention’s cause of action and is not subject to tolling, and the court dismissed the claim against the airline.

[15] The language of Article 35 of the Montreal Convention is identical to the language of Article 29 of the Warsaw Convention. Where there are no significant differences between the language of the Warsaw Convention and the Montreal Convention, the interpretation of the Warsaw Convention is relevant and applicable: Plourde v. Service aérien F.B.O. inc. (Skyservice), 2007 QCCA 739 at paras. 52 and 57, leave to appeal refused [2007] S.C.C.A. No. 400.

[16] The interpretation of Article 35 of the Montreal Convention must be consistent with that of Article 29 of the Warsaw Convention pursuant to the purposive approach to the interpretation of international treaties in general and the Conventions in particular established by the rules of interpretation of international treaties developed in case law and also to the Vienna Convention on the Law of Treaties. See: Holden v. ACE Aviation Holdings Inc. (2008), 296 D.L.R. (4th) (Ont. Div. Ct.); Connaught Laboratories Ltd. v. British Airways (2002), 2002 4642 (ON SC), 61 O.R. (3d) 204, affd. 2005 CarswellOnt. 1975 (C.A.); 1969 UN Vienna Convention on the Law of Treaties, UN A/CONF.39/11/Add.2 Art. 31, 32 and 33.

[17] Any action brought against an air carrier under the Montreal Convention must be brought in accordance with Article 35: Sakka v. Societe Air France, supra; Gal v. Northern Mountain Helicopters Inc. (1999), 1999 BCCA 486, 177 D.L.R. (4th) 249 at p. 252 (B.C.C.A.); Clarke v. Royal Aviation Group Inc./Groupe Royal Aviation Inc. (1997), 1997 12170 (ON SC), 34 O.R. (3d) 481 at p. 483 (Gen. Div.).

[18] Article 35 is not an ordinary limitation provision. It contains a time bar of a special kind - one which extinguishes the claim and not just the remedy. The only matter to be determined by a court with respect to Article 35 is whether the plaintiff commenced this action within two years of the date specified in Article 35. See: Sakka v. Societe Air France, supra; Gal v. Northern Mountain Helicopters Inc., supra.

[19] The Montreal Convention’s two-year limitation period for filing suit is a condition precedent to suit. Therefore, domestic laws cannot modify or toll the two-year period during which an action could be brought under the Montreal Convention. See: Sakka v. Societe Air France, supra; Gal v. Northern Mountain Helicopters Inc., supra at pp. 254-255; Kahn v. Trans World Airlines, Inc., 443 N.Y.S. 2d 79, 82 A.D. 2d 696 (N.Y.A.D. 1981).

[20] I, therefore, conclude that it is plain and obvious that Mr. Titulescu’s action should be struck without leave to amend because the pleading is, on its face, statute-barred.

[21] I award the Defendant costs on a partial indemnity basis of $5,203.97, all inclusive.

Perell, J.

Released: September 30, 2014

COURT FILE NO.: CV-14-507257

DATE: 20140930

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE NICOLAE TITULESCU
Plaintiff

– and –

UNITED AIRLINES INC.
Defendant

REASONS FOR DECISION

PERELL J.

Released: September 30, 2014