Court File and Parties

COURT FILE NO.: CV-15-530419 DATE: 20160608 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Abdourahame Diallo, Plaintiff AND: Compagnie Nationale Royale Air Maroc, Defendant

BEFORE: Carole J. Brown, J.

COUNSEL: Abdourahame Diallo, representing himself Andrew McDonald, for the Defendant

HEARD: May 17, 2016

Endorsement

[1] The defendant, Compagnie Nationale Royale Air Maroc ("RAM"), brings this motion pursuant to section 106 of the Courts of Justice Act and Rule 21 of the Rules of Civil Procedure ("Rules") for an order striking the plaintiff's statement of claim and dismissing his action on three grounds: (1) that it is plain and obvious that it is precluded by Article 35 of the Montreal Convention, (2) that it is statute-barred by the Limitations Act, 2002, and (3) that it is barred pursuant to the doctrines of issue estoppel, collateral attack and abuse of process.

[2] The plaintiff seeks damages arising from the alleged cancellation of the return segment of a contract for international carriage by air that he entered into with the defendant on July 30, 2011. The contract for international carriage by air was for return travel between Montreal, Quebec, Canada and Conakry, Republic of Guinea, departing Montreal on August 7, 2011 and returning from Conakry on November 5, 2011. The plaintiff alleges that he was informed on the morning of November 4, 2011 that his November 5, 2011 return flight from Conakry had been cancelled. He subsequently returned to Montreal, after having purchased a return ticket in the amount of $987.66 on February 22, 2013.

[3] It was the position of RAM that it was required to cancel the scheduled flight back to Montreal on November 5, 2011, due to technical issues, and that all passengers were apprised that they were confirmed on a replacement flight, also returning on November 5, 2011.

[4] Prior to commencing this action, the plaintiff sought compensation from the defendant in respect of the same allegations as those comprising this claim, by bringing an application to the Canadian Transportation Agency ("CTA"), which adjudicated his complaint through a specialized, quasi-judicial process and dismissed it in a decision dated June 29, 2015. The CTA found as fact that the plaintiff's return flights had not been cancelled, but that they were replaced for technical reasons, that the plaintiff had been informed that he had confirmed reservations on the November 5, 2011 replacement return flight from Conakry to Montreal, chose not to present himself for the flight and, instead, sought to extend the return ticket to Canada to a later date. The plaintiff did not seek review of the CTA's decision, nor did he appeal it.

[5] Instead, he commenced this action on June 16, 2015, alleging the cost of the return flight in the amount of $987.66, and damages for economic loss, loss of enjoyment and humiliation in the amount of $100,000.

The Issues

[6] The issues to be determined by this Court are:

a. Whether the plaintiff's action is precluded by Article 35 of the Montreal Convention; b. Whether the plaintiff's action is statute-barred pursuant to the Limitations Act, 2002; c. Whether the plaintiff's action is barred pursuant to the doctrines of issue estoppel, collateral attack and abuse of process.

Is the Plaintiff's Action Precluded by Article 35 of the Montreal Convention?

[7] The Montreal Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. The RAM flight in issue is subject to the terms of the Montreal Convention: see Montreal Convention, Articles 1(1) and (2); Titulescu v United Airlines, 2014 ONSC 5683.

[8] The Montreal Convention is the uniform and exclusive scheme of damages liability for international air carriers, such as RAM: Thibodeau v Air Canada, 2014 SCC 67. The Supreme Court of Canada has affirmed the strong exclusivity of the Montreal Convention: Thibodeau v Air Canada, supra.

[9] The right of a party to claim damages against an international air carrier in relation to a contract for international carriage by air is subject to the conditions and limitations of the Montreal Convention. It is well-established in Canadian and international jurisprudence that damages, such as those claimed by the plaintiff for economic loss, loss of enjoyment and humiliation are not recoverable under the Montreal Convention. Nor are damages for moral prejudice, pain and suffering and loss of enjoyment: see Thibodeau v Air Canada, supra. paragraph 64.

[10] Moreover, pursuant to the Montreal Convention, Article 35:

The right to damages shall be extinguished if an action is not brought within a period of 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.

[11] As regards the plaintiff's scheduled flight on November 5, 2011, any action for damages brought pursuant to Article 35 of the Montreal Convention must have been brought within two years after the date on which the aircraft ought to have arrived or from the date on which the carriage stopped, namely by on or before November 6, 2013. Thereafter, pursuant to the Montreal Convention, the right to damages was extinguished. However, this action was not commenced until June 16, 2015, some 19 months after the plaintiff’s right to damages pursuant to the Montreal Convention was extinguished.

[12] As noted by Perell J in Titulescu v United Airlines, supra, at paragraph 18, Article 35 of the Montreal Convention "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." Thus, the two-year limitation period for filing a lawsuit is a condition precedent to that lawsuit, that cannot be modified or tolled by any domestic law.

[13] Based on the foregoing, I am satisfied that it is plain and obvious that the plaintiff's statement of claim cannot stand and must be struck pursuant to Rule 21 of the Rules, and that the plaintiff's action must be dismissed.

Is the Plaintiff's Action Statute-Barred by the Limitations Act, 2002

[14] The defendant further submits, in the alternative, that even if the Montreal Convention does not cover all claims advanced by the plaintiff, the plaintiff's action as regards any other claims is statute-barred by the Limitations Act, 2002. While I am satisfied that it is plain and obvious that the plaintiff's claim and action must be dismissed pursuant to Article 35 of the Montreal Convention, I will provide my comments as regards the application of the Limitations Act to the plaintiff's claim.

[15] Pursuant to sections 4 and 5(1) and (2) of the Limitations Act, 2002, the plaintiff's claim must have been commenced within two years after the second anniversary of the day on which the claim was discovered. Taking into consideration the presumption at section 5(2) of the Act, the plaintiff's claim was discovered or discoverable on November 5, 2011. However, taking into account the discoverability provision set forth at section 5(1), and taking the plaintiff's pleadings as proven, including his allegation that he was told that he would not have to pay for another return ticket, the latest possible date on which the plaintiff could have discovered his alleged claims against the defendant was February of 2012, when he returned to Conakry to book his return flight to Canada and was told that he would have to purchase his return ticket. By that date, if not before, the plaintiff knew sufficient material facts to make a claim against the defendant discoverable by February of 2012. He knew that he would have to incur additional costs, whether by the payment of money or through the use of frequent flyer miles, or a combination of the two, in order to complete his return journey. Thus, at the very latest, the plaintiff had until February of 2014 to commence his claim against the defendant. Again, the claim was not issued until June 16, 2015, some 16 months after the limitation period expired. As a result, it is plain and obvious that the plaintiff's claim is statute-barred pursuant to the Limitations Act, 2002, and must be struck.

Is the Plaintiff's Action Barred Pursuant to the Doctrines of Issue Estoppel, Collateral Attack and/or Abuse of Process

[16] Finally, the defendant submits that the plaintiff's action is barred by the doctrines of issue estoppel, collateral attack and/or abuse of process, as the plaintiff brought the matter before the CTA for adjudication. The matter before the CTA involved the same issues, the same parties and sought the same remedies. After the CTA's dismissal of the plaintiff's complaint, the plaintiff did not seek to have the CTA's decision further reviewed or appealed.

[17] It has long been recognized that respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice. On the other hand, re-litigation of issues that have been previously decided in an appropriate forum, may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings. The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature. Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision: British Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52 per Abella J.

[18] The CTA is a specialized administrative tribunal, with authority from Parliament to perform a quasi-judicial function, with authorized means of review or rehearing: Lukacs v Canadian Transportation Agency, 2015 FCA 140; Canada Transportation Act, SC 1996, c 10, ss.17, 25 - 35; Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104.

[19] Based on all of the evidence before this Court, I am satisfied that the same issues were before the CTA as have been brought before the Court in this action. The parties to the dispute before the CTA are the same as those involved in this action. The decision rendered by the CTA on June 29, 2015 is final and binding on the parties, and the plaintiff did not seek to have the decision reviewed or appealed.

[20] In bringing this action, the plaintiff seeks to collaterally attack the final decision of the CTA, a specialized, quasi-judicial administrative tribunal. By commencing this action, the plaintiff now seeks to circumvent the appropriate review mechanisms that were available to him, and re-litigate the same issues originally brought before the CTA. Such re-litigation of matters which have already been litigated in the appropriate forum causes unnecessary expenditure of resources and serves to undermine the finality of a judicial or administrative decision, which cannot be permitted. As a result, I am satisfied that the doctrines of issue estoppel, collateral attack and abuse of process all preclude the bringing of the plaintiff's action before this Court.

[21] As a result, I strike the statement of claim without leave to amend and dismiss the plaintiff's action, Court file number CV-15-530419.

Costs

[22] The defendant, which was successful on its motion, seeks its costs of the motion on a partial indemnity basis in the amount of $4,536 for fees plus disbursements and HST for a total of $5,369.61.

[23] Costs are intended to compensate the successful party to the litigation for some of the legal expenses that that party has incurred. In awarding costs, the general principles set forth at Rule 57.01 are to be taken into consideration, as well as proportionality and reasonable expectations. I am satisfied, in the present case, and taking into account the factors to be considered, that costs on a partial indemnity basis in the amount of $5,369.61 are to be paid by the plaintiff to the defendant forthwith.

Carole J. Brown, J. Date: June 8, 2016