2016 QCCQ 6100, 2016 QCCQ 6100

Hirsh c. Air Canada 2016 QCCQ 6100 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146915-154 DATE: June 17, 2016 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ HARVEY HIRSH Plaintiff v.

AIR CANADA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff is suing defendant, an airline carrier, in damages, following a cancelled flight, from Los Angeles to Montreal, on January 5, 2015. [ 2 ] In his application, plaintiff alleges: "Jan. 5 2015 Air Canada Flight 798 was scheduled to depart Los Angeles at 11:55 AM for Montreal.

After multiple delays, rescheduling, much misinformation, no proper communication and a total lack of consideration, I was informed at 7 PM that A.C. flight 798 was cancelled. I finally left L.A. the following day at 9 AM. I am claiming the sum of $10,000 (ten thousand dollars) which represents my loss of revenue, loss of enjoyment, undue stress as well as extreme fatigue." [ 3 ] Defendant alleges, essentially, that the flight "was delayed for a cause beyond Air Canada's control, which is a sudden mechanical problem, unforeseeable in spite of a complete and rigorous maintenance programme".

It further alleges that "an avionics vent fault was detected" prior to departure, from Montreal, on January 5, 2015, and that repairs were required "before the aircraft could be deemed airworthy". [ 4 ] GIVEN the evidence; [ 5 ] WHEREAS

article 19 of the Montreal Convention of 1999 [1] states: "

Article 19 - Delay The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo.

Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures." [ 6 ] WHEREAS the onus was on defendant to prove, by a preponderance of evidence, that defendant did indeed take all measures reasonably required to avoid the damages caused by the delay; [ 7 ] WHEREAS defendant did not fulfill its burden of proof; [ 8 ] WHEREAS , although defendant's representative produced 2 reports relating to the mechanical state of the aircraft on January 5 th , 2015, these reports are unsigned and no witness was heard regarding the mechanical issue involved; [ 9 ] WHEREAS , furthermore, no evidence was presented to substantiate the allegation of a "complete and rigorous maintenance program" on this aircraft, specifically prior to January 5 th ; [2]

[ 10 ] WHEREAS , furthermore, defendant was unable to justify

a) the absence of a replacement crew to fly the aircraft back to Montreal, on January 5 th ; [3] and

b) to explain why plaintiff was not rerouted ("reprotected") on an alternate route or carrier, on January 5 th , despite his urgent requests to ground crew to do so, [4] in conformity with defendant's general rules (exhibit P-4); [ 11 ] WHEREAS plaintiff declared that, in fact, ground crew did nothing to try to satisfy his request and schedule; [ 12 ] WHEREAS , however, the damages claimed are excessive; [ 13 ] WHEREAS plaintiff is not entitled to damages for "stress" under the Montreal Convention: [5] [ 14 ] WHEREAS , however, the Court awards plaintiff $500.00 for the trouble and inconvenience suffered, as a direct result of defendant's faults and omissions (plaintiff spent hours at the airport, only to go back to his son's home, where he stayed overnight, and then returned to the airport very early the next morning; it should be noted, however, that plaintiff refused the vouchers offered by defendant); [ 15 ] WHEREAS , with regards to the alleged "loss of revenue" in the amount of $5,000.00, plaintiff did not present any accounting records; furthermore, the patients were rescheduled and treated at a later date; it is therefore very difficult, if not impossible, for the Court to realistically establish the actual loss to plaintiff, if any (no evidence was presented for the alleged staffing costs either); [ 16 ] WHEREAS , however, the Court awards plaintiff a nominal amount of $1,000.00 for the trouble and inconvenience which he incurred to reschedule all his patients and procedures, as a direct result of defendant's faults and omissions; WHEREFORE THE COURT HEREBY: GRANTS plaintiff's claim in part; SENTENCES defendant to pay plaintiff the sum of $1,500.00, plus interest at the legal annual rate of 5% and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec , as of January 23, 2015 and legal costs in the amount of $200.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: May 16, 2016