Canada: extension the time for service of an originating process has no relvance to Warsaw Convention time limit

Claimants issued a notice of action against Ukraine International Airlines (UIA), and others regarding the destruction of documents contained in an Air France jet that overran the runway and caught fire at Pearson International Airport. The notice of action was issued within the two-year limitation period. However, the respondents were not successful in serving the claim on the appellant within the six-month period provided in Ontario’s Rules of Civil Procedure.The claimants brought an ex parte motion before Master Sproat for an order extending the time for service. Master Sproat adjourned the motion for notice to be served on UIA and the other defendants who had not yet been served.In the court of first instance, the primary issue was whether the respondents had “brought” the action when the statement of claim was issued or only when service of the claim was effected. In the appeal UIA conceded that the action was brought upon issuance of the claim and that this occurred within the two-year limitation period but argued that the extension of time was improper because the statement of claim had expired due to the failure to effect service before the extension was obtained and that given the language of article 29, the claim had expired and could not be revived.The Court of Appeal for Ontario held that once the claimants complied with the requirement in article 29 that a claim be issued within the two-year period, they brought themselves within Ontario’s Rules. Pursuant to those Rules and the jurisprudence governing them, the nunc pro tunc extension to the time for service did not amount to the bringing of a new claim; the claim had already been “intentée” and the time for service of the existing claim was extended in accordance with Ontario procedure. As a result, UIA’s appeal was dismissed.Case: Mosregion Investments Corporationv.Ukraine International Airlines,2010 ONCA 715Find full text of decision here>>.

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