Date: 20010911
Docket: T-2053-99
Neutral citation: 2001 FCT 1012
ACTION IN PERSONAM AGAINST
AIR CANADA AND EXPEDITORS INTERNATIONAL
BETWEEN:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendant
AND
AIR CANADA
Third Party
RICHARD MORNEAU, PROTHONOTARY:
[1] This motion to amend, filed by the plaintiff of record (the Red Cross) pursuant to rule 75 of the Federal Court Rules, 1998, (the Rules), seeks leave to add Alpha Therapeutic (Alpha) as a plaintiff in the style of cause.
[2] The action in which this motion was brought is governed in substance by the Carriage by Air Act, R.S., 1985, c. C-26 (the Act) and the Warsaw Convention (the Convention) which is incorporated into that Act.
Facts
[3] The relevant facts in this case are summarized below.
[4] After merchandise belonging to the Red Cross was severely damaged during a flight between Los Angeles and Ottawa on or about November 26, 1997, the Red Cross filed an action for damages on November 22, 1999, against, inter alia, Air Canada (the defendant) in its capacity as carrier. In the air waybill, the Red Cross had been named as consignee, Air Canada as carrier and Alpha as consignor.
[5] As sole plaintiff, the Red Cross brought the action within the two-year limitation period stipulated by article 29 of the Convention, which reads:
|
Article 29 (1) 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. (2) The method of calculating the period of limitation shall be determined by the law of the Court seized of the case. |
Article 29 (1) L'action en responsabilité doit être intentée, sous peine de déchéance, dans le délai de deux ans à compter de l'arrivée à destination ou du jour où l'aéronef aurait dû arriver, ou de l'arrêt du transport. (2) Le mode du calcul du délai est déterminé par la loi du tribunal saisi. |
Analysis
[6] Counsel for the Red Cross attempted to base the action on articles 12 to 14 of the Convention for the purpose of arguing that the action brought in a timely manner by their client had interrupted the limitation period in fact and in law in regards to both the Red Cross and Alpha. The relevant passages of those articles read as follows:
|
Article 12 (1) Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the aerodrome of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air waybill, or by requiring it to be returned to the aerodrome of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right. ... (4) The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13.... |
Article 12 (1) L'expéditeur a le droit, sous la condition d'exécuter toutes les obligations résultant du contrat de transport, de disposer de la marchandise, soit en la retirant à l'aérodrome de départ ou de destination, soit en l'arrêtant en cours de route lors d'un atterrissage, soit en la faisant délivrer au lieu de destination ou en cours de route à une personne autre que le destinataire indiqué sur la lettre de transport aérien, soit en demandant son retour à l'aérodrome de départ, pour autant que l'exercice de ce droit ne porte préjudice ni au transporteur, ni aux autres expéditeurs et avec l'obligation de rembourser les frais qui en résultent. ... (4) Le droit de l'expéditeur cesse au moment où celui du destinataire commence, conformément à l'article 13 ci-dessous.... |
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Article 13 (1) Except in the circumstances set out in the preceding Article, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to hand over to him the air waybill and to deliver the cargo to him, on payment of the charges due and on complying with the conditions of carriage set out in the air waybill. ... |
Article 13 (1) Sauf dans les cas indiqués à l'article précédent, le destinataire a le droit, dès l'arrivée de la marchandise au point de destination, de demander au transporteur de lui remettre la lettre de transport aérien et de lui livrer la marchandise contre le paiement du montant des créances et contre l'exécution des conditions indiquées dans la lettre de transport aérien. ... |
|
Article 14 The consignor and the consignee can respectively enforce all the rights given them by Articles 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract. |
Article 14 L'expéditeur et le destinataire peuvent faire valoir tous les droits qui leur sont respectivement conférés par les articles 12 et 13, chacun en son propre nom, qu'il agisse dans son propre intérêt ou dans l'intérêt d'autrui, à condition d'exécuter les obligations que le contrat impose. |
[7] In my view, those articles do not apply in this case since they do not contemplate the factual situation faced by the Red Cross, i.e. loss of or damage to shipped cargo. Article 18 of the Convention is addressed to the Red Cross's situation and reads as follows:
|
Article 18 (1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air. ... |
Article 18 (1) Le transporteur est responsable du dommage survenu en cas de destruction, perte ou avarie de bagages enregistrés ou de marchandises lorsque l'événement qui a causé le dommage s'est produit pendant le transport aérien. ... |
[8] Therefore, it cannot be determined that the action of the Red Cross also interrupted the limitation period with regards to Alpha.
[9] In my view, the appropriate reasoning and the conclusion to draw can be found in Newfoundland Steamships Ltd. et al. v. Canada Steamship Lines Ltd. et al. (1979),
107 D.L.R. (3d) 84, a decision of the Federal Court of Appeal.
[10] In that case, some plaintiffs listed specifically in an appendix to their statement of claim in which they had described themselves in the style of cause as "those persons interested in the cargo laden on board the ship ‘Fort St. Louis'" sought to add, after the expiry of the limitation period, the names of additional plaintiffs whose identity was not known at the time the action was commenced.
[11] Mr. Justice Pratte, who set aside the decision of the judge below granting the amendment, made the following analysis:
The Judge below, nevertheless, rendered the judgment against which this appeal is directed and granted the application for reasons that he summarized as follows [90 D.L.R. (3d) 79, at p. 83; [1979] 1 F.C. 393]:
On the whole, therefore, I am of the opinion that this is not a case where the claims of any new parties, appearing in the appendix, now sought to be substituted for the former appendix, are really new claimants whose claims are prescribed but rather that they are included in the designation of persons interested in the cargo on the ship. It is merely the substitution of new particulars which have since come to light for former particulars and, moreover, in the great majority of the cases merely adds the name of the shipper as well as the consignee, or conversely, provides defendants with greater details from which to check the claims. It is not necessary to decide at this stage of the proceedings whether the claimant should be the shipper or the consignee but justice requires that whoever suffered the loss should be compensated for it, provided that the total amount of the claim does not exceed $509,443.28 (which includes surveyors and adjusters fees) sought for the "Plaintiff cargo interest for distribution as their interests may appear" as stated in conclusion of the original statement of claim.
This judgment, in my respectful opinion, must be set aside.
It is common ground that the prescription of the plaintiffs' claim was governed by the law of Quebec where the cause of action arose (see s. 38 of the Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.)). The plaintiffs' claim was based either entirely on delict, as found by the Judge below, or, as argued by the plaintiffs' counsel, both on delict and contract. In either case, the statement of claim asserted a delictual claim which was subject to a prescription of two years (art. 2261 of the Quebec Civil Code) after the expiry of which the debt (in so far as it was founded on delict) was absolutely extinguished (art. 2267 Civil Code). In these circumstances, the Judge could not authorize the addition of new plaintiffs to the action unless he came to the conclusion that the commencement of the action in 1975 had interrupted the prescription of the claims of those new plaintiffs as well as of those who were named as plaintiffs in the original action: see Leesona v. Consolidated Textile Mills (1977), 82 D.L.R. (3d) 56 at p. 62, [1978] 2 S.C.R. 2 at p. 11, 35 C.P.R. (2d) 254.
It is argued, however, that the plaintiffs were not really seeking to add new parties to the action; they merely wanted, it is said, to particularize the description of the plaintiffs in the style of cause ("THOSE PERSONS INTERESTED IN THE CARGO etc. ..."). I do not agree. Had the plaintiffs been merely described as "those interested in the cargo ...", it is certainly arguable that the action would have been irregularly instituted and would not, for that reason, have interrupted the prescription. But this point need not be decided since, in this case, the plaintiffs were not described in that vague and general way: the style of cause as well as para. 3 of the statement of claim contained an express reference to annex A as containing the names of all those having an interest in the cargo. The action, in my opinion, was commenced in the name of the persons enumerated in annex A and the effect of the judgment under attack is clearly, in my view, to authorize that new plaintiffs be added to the action.
The decision of the Supreme Court of Canada in the Leesona case does not, in my opinion, support the decision of the Trial Division. Here the plaintiffs were not seeking to correct a misnomer or to overcome a mere technicality; they wanted to amend the statement of claim so as to add new parties whose identities had been unknown to all persons concerned at the time of the commencement of the action. That, in my view, could not be done because I do not see how the action commenced in 1975 could have interrupted the prescription of claims of persons who were not parties to that action.
In the exercise of its discretion under Rule 424, the Court cannot, even in order to achieve a fuller measure of justice, disregard the effect of prescription. This is, in my view, what the Trial Division has done here.
[Emphasis added]
[12] In this case, as in Newfoundland Steampships, it cannot be argued that the plaintiffs are seeking to correct a misnomer or to overcome a mere technicality. Nor is this a case where fairness requires the court's intervention to ensure that procedure does not prevail over substance.
[13] An example of such a situation is the Leesona decision, cited by Pratte J.A. in Newfoundland Steampships, where, despite the expiry of the limitation period, the Supreme Court allowed the defendant to correct its company name in order that the style of cause reflect the parties' intentions that the action be brought against the operating company and not the holding company.
[14] In Pateman v. Flying Tiger Line, [1987] 3 F.C. 613, upheld on appeal as to the result in (1988), 89 N.R.155, a decision the Red Cross relied on heavily, an insurer, which had become legally subrogated to the rights of the insured, sought to add the name of the insured as a plaintiff to the action in damages it had brought pursuant to the Act and the Convention. Notwithstanding the expiry of the two-year limitation period under article 29 of the Convention, the insurer was allowed to make the change in order to prevent a potential challenge to its status in the action by the defendants.
[15] It is clear from the reasons stated at the beginning and at the end of Pateman that the Court considered the insurer and the insured to constitute a single party in the action and that there was a blatant need to remedy the situation if the action was to proceed on the merits unhindered by procedural requirements.
[16] The situation in this case is distinctly different from that in Leesona, Pateman and in similar cases mentioned in either of those decisions.
[17] In the case at bar, the present plaintiff, the Red Cross, was aware from the outset of the existence of Alpha as a separate entity. Although an attempt was made to argue that Alpha had not been added as co-plaintiff by sheer inadvertence, no affidavit was produced as evidence in that regard.
[18] It appears therefore that two separate entities had a right of action against the defendants but that for reasons unknown to this Court, only one of those entities exercised its right of action within the appropriate period. Since I am unable to conclude, as did the Court in Newfoundland Steamships, that the action brought by the Red Cross has interrupted the limitation period in favour of Alpha, I must find that Alpha's right of action is prescribed. Notwithstanding the latitude normally afforded the Court on motions to amend, the motion in this case must be dismissed with costs.
[19] Although in Pateman, the trial division referred to the former rule 1716, the ancestor of rules 103 and 104, I think it would be inappropriate in this case to apply rules 76, 77 or 104(1)(b) since adding Alpha as a plaintiff would effectively disregard the substantive rules of prescription prescribed by the Convention.
[20] For these reasons, the plaintiff's motion to amend will be dismissed with costs. In order to dispose of its other motion to extend the limitation period for service of its affidavit of documents, the plaintiff shall serve that affidavit within 10 days of the order accompanying these reasons.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
September 11, 2001
Certified true translation
S. Debbané, LL.B.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
STYLE OF CAUSE:
T-2053-99
ACTION IN PERSONAM AGAINST AIR CANADA AND EXPEDITORS INTERNATIONAL
BETWEEN:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendants
AND
AIR CANADA
Third Party
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:July 9, 2001
REASONS FOR ORDER BY RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER:September 11, 2001
APPEARANCES:
| Isabelle Pillet |
For the Plaintiff |
|
| Timothy Trembley |
For Air Canada as Defendant and Third Party |
|
SOLICITORS OF RECORD:
| De Man, Pilotte Montréal, Quebec |
For the Plaintiff |
|
| Paterson, MacDougall Toronto, Ontario |
For Air Canada as Defendant and Third Party |
|
| Klein & Schonblum Associates Toronto, Ontario |
For Expeditors International as Defendant |
Date: 20010911
Docket: T-2053-99
Montréal, Quebec, September 11, 2001
Present: Richard Morneau, prothonotary
ACTION IN PERSONAM AGAINST
AIR CANADA AND EXPEDITORS INTERNATIONAL
BETWEEN:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendants
AND
AIR CANADA
Third Party
ORDER
The plaintiff's motion to amend is dismissed with costs. In order to dispose of its
other motion to extend the limitation period for service of its affidavit of documents, the
plaintiff shall serve that affidavit within 10 days of this order.
Richard Morneau
Prothonotary
Certified true translation
Sophie Debbané, LL.B.
Federal Court of Canada
Trial Division
Date: 20010911
Docket: T-2053-99
ACTION IN PERSONAM AGAINST
AIR CANADA AND EXPEDITORS INTERNATIONAL
Between:
CANADIAN RED CROSS SOCIETY
Plaintiff
AND
AIR CANADA
and
EXPEDITORS INTERNATIONAL
Defendants
AND
AIR CANADA
Third Party
REASONS FOR ORDER