Hoghooghi v. Advanced Travel and Tours Ltd. Date:, 2013 BCPC 344

Citation: Hoghooghi v. Advanced Travel and Tours Ltd. Date: 20131016 2013 BCPC 0344 File No: 13-43493 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MOHAMMAD HOGHOOGHI CLAIMANT AND: ADVANCED TRAVEL AND TOURS LTD DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing on their own behalf: M. Hoghooghi Appearing for the Defendant: Tina Khodaei & Mr. Amini Place of Hearing: Vancouver , B.C.

Date of Hearing: September 25, 2013 Date of Judgment: October 16, 2013 [ 1 ] The Claimant seeks to recover the cost of an airline ticket that he paid for in order to fly from London, England to Vancouver, British Columbia on March 3, 2013 when that portion of a previous roundtrip ticket he had purchased was cancelled by the airline, British Airways, because he had been a “no show” on a prior portion of the ticket. [ 2 ] On January 30, 2013, the Claimant purchased through the Defendant a round trip premium economy ticket on British Airways from Vancouver, British Columbia to London, England to Malaga for $2,281.45.

The travel dates were February 4: Vancouver to London; February 6: London to Malaga; February 24: Malaga to London; and March 3: London to Vancouver. The Claimant knew that this was a restricted ticket because he initially booked to depart on February 2 and subsequently paid $396.55 to change the travel dates. The Defendant issued a “confirmation” of booking document which it sent to the Claimant by email.

The confirmation provided a booking reference number, particulars of the travel dates, departure and arrival times etc. of each flight, a reservation number, and a direction to “click the following link to access your online itinerary”. Another website was provided for “baggage policy – for travel to/from within the US”.

There were no “terms and conditions” attached to the confirmation nor an incorporation by reference to any terms and conditions of the single carrier, British Airways. [ 3 ] The Defendant issued two invoices dated January 30, 2013 and February 1, 2013 for the cost of the airfare and the subsequent change in flight departure dates. Neither of these invoices show the correct flight dates of all four flights. Both invoices have the same information printed clearly on them.

It includes the direction to “reconfirm return flight at least 5 days prior to departure” and the information that “no show is treated as expired ticket(s)”. There is no statement on the invoice that incorporates by reference all the terms and conditions of the carrier, British Airways. In any event, the Claimant says that he did not receive either of these invoices until his return from the trip. That evidence is not disputed and I accept it. [ 4 ] The Claimant used his ticket to fly from Vancouver to London and London to Malaga. However, he did not use the ticket for the leg from Malaga to London.

He bought another ticket and returned to London by another route. He apparently did not inform British Airways of his intention not to use the Malaga to London portion of his return ticket. In accordance with what I accept on the evidence of the Defendant is British Airways’ policy, because the Claimant was a no show on the Malaga to London leg of the trip, British Airways cancelled his ticket for the London to Vancouver portion of the trip. The evidence of Ms.

Khodaei, which I accept, is that British Airways’ policy is not unique as many other airlines do the same thing for multiple destination tickets that are priced lower than the total cost of each leg of a trip if purchased separately. Thus on arriving at Heathrow Airport on March 3, 2013, the Claimant was advised that his ticket had been cancelled. He had to purchase an economy ticket from London to Vancouver and return for $1,540.00 (CAD). (The return Vancouver to London portion of this ticket was for October 7, 2013. He did not intend to use it.

It was cheaper to purchase a return ticket than a one-way ticket.) [ 5 ] The Claimant’s position is that the only document issued to him respecting the flight was the confirmation which did not contain any terms or conditions of travel, but in particular did not contain any provision entitling British Airways to cancel remaining portions of the ticket if he did not use a prior portion.

The Claimant asserts that on arrival at the Vancouver Airport on February 4, 2013, and presumably also on arrival at Heathrow Airport on February 6, 2013 in preparation for departure he was not required to produce anything other than his passport and the confirmation. The check-in agent was able to pull up on the computer screen a copy of his e- ticket which verified the travel reservation. The Defendant does not dispute that it is possible to board these flights without producing any physical paper ticket.

Thus the Claimant asserts that he was never advised orally or in writing that missing one leg of his trip would result in the cancellation of the remaining legs. Moreover, no term was incorporated into his ticket that entitled British Airways to cancel a portion of the ticket in the circumstances that occurred. [ 6 ] The Defendant asserts that an e-ticket was issued to the Claimant and the e-ticket does incorporate by reference all the terms and conditions of the carrier providing the service. The e-ticket for the actual trip made by the Claimant is not in evidence.

There is in evidence an e-ticket for the Claimant with a departure date of February 2, 2013 and a return date from London to Vancouver of February 24, 2013. This e-ticket was presumably for the original booking which the Claimant subsequently changed. Nevertheless, the Defendant asserts that all the terms and conditions printed on the e-ticket in evidence are the same as the ones that were printed on the e- ticket issued for the actual trip taken.

The e-ticket does include the following warning: Endorsements: non-refundable, restrictions apply. (The Claimant knew that some restrictions applied because he had to pay a change fee at the outset to change his travel dates.) [ 7 ] The e-ticket also contains the following: Notice of contract terms incorporated by reference.

Your contract of carriage with the carrier that provides you with carriage by air, whether international, domestic or a domestic portion of an international journey is subject to this notice, to any notice or receipt of the carrier, and to the carrier’s individual terms and conditions (conditions) related rules, regulations and policies (regulations) and any applicable tariffs. The conditions, regulations and any applicable tariffs of each carrier are, by this notice, incorporated by reference into and made part of your contract of carriage.

The conditions may include, but are not restricted to: Rules about re-confirmations or reservations check in times, the use duration and validity of air transportation services and the carrier’s right to refuse carriage. You can obtain more information about your contract of carriage and find out how to request a copy at places where transportation on the carrier is sold.

Many carriers also have this information on their websites. [ 8 ] The confirmation issued by the Defendant, as noted previously, contained the direction “click the following link to access your online itinerary.” The Defendant asserts that had the Claimant accessed his online itinerary, he would have been able to view and print the e-ticket issued for his actual travel from the site. [ 9 ] Late in the hearing, the Defendant sought to introduce documents from prior trips booked by the Claimant through the Defendant to show that the Claimant was in fact aware of the “no show” policy of airlines.

These documents were not attached to the Defendant’s Trial Statement and their introduction into evidence was opposed by the Claimant who denied that the “no show” policy applied to all types of airline tickets. I declined to have the documents introduced into evidence. [ 10 ] I find as a fact that the only document emailed directly to the Claimant by the Defendant was the confirmation. I further find that the Claimant was able to board the flights from Vancouver and London without physically possessing any e-ticket.

The question in my view then becomes whether the terms and conditions made part of the e-ticket which the Claimant could have accessed and printed, but did not, apply to his flights. The e-ticket itself clearly incorporates by reference British Airways’ terms, conditions, rules, regulations, policies and tariffs.

I accept the Defendant’s evidence that one of those rules, policies or conditions was the right to cancel remaining portions of a multi-flight ticket following the “no show” on the preceding portion. [ 11 ] During the hearing I expressed concern that there was nothing in the confirmation that incorporated the individual carrier’s terms and conditions of contract. I do not think a direction to click a link to access one’s online itinerary is sufficient to incorporate into the confirmation a carrier’s terms and conditions.

Even though they may be accessible on the online itinerary, I also note that the confirmation does not advise the customer that there is an e-ticket accessible on the online itinerary or that the customer must view or obtain the e-ticket in order to know all the terms and conditions of travel.

A traveller might reasonably think that with a printed confirmation containing a booking reference number in hand, it was not necessary to look at any online itinerary. [ 12 ] Notwithstanding the concern expressed during the hearing, I have come to the conclusion that the relevant document is not the confirmation but rather the e-ticket. The confirmation is not the official travel document.

It is a document of convenience to show that specific reservations have been made. [ 13 ] I find as a fact that an e-ticket for the correct travel dates was issued to the Claimant and available for him to access on his online itinerary. Whether he accessed it personally or not, on the evidence it is the e-ticket that had to be viewed at the departure terminal before travel was permitted. I do not think it matters that the e-ticket was accessed by the check in agent on his/her computer terminal as opposed to being handed a paper copy of the e-ticket by the Claimant.

An e-ticket incorporating the carrier’s terms and conditions was issued to the Claimant; it was accessible by him and he simply elected not to access and read it. [ 14 ] As a regular air traveller, the Claimant knew that some terms and conditions must apply to his flights beyond the bare flight information set out in the confirmation. There is for example no reference on the confirmation to minimum check in times or baggage or weight allowances for the flights. It is common knowledge that airlines have such restrictions.

It is completely unrealistic to conclude as the Claimant asserts that no terms and conditions applied to his flights other than what is set out in the confirmation. [ 15 ] As indicated previously, in my view, the critical document is the e-ticket. For his money, the Claimant purchased an airline ticket, not a confirmation sheet. The legal principle involved is that when one relies on a document, one must take both its benefits and its burdens. The document in this case is the airline ticket itself. [ 16 ] In Hwang v.

Axa Pacific Insurance Company ( 2001 BCCA 410 ) the Plaintiff sought to be defended by his homeowner insurer against a claim brought by a neighbour for causing subsidence to the neighbour’s property. The insurer denied coverage based upon an exclusion in the policy as well as failure to comply with a notice condition in the policy. The full policy coverages, terms, conditions and exclusions were set out in a booklet that should have been mailed to the insured at the time coverage was placed but which was found not to ever have been received by the insured.

The insured took the position that the insurer could not rely as a basis for denial of the claim on any exclusions or conditions not contained in a policy delivered to the insured. The Court of Appeal rejected this position. At paragraph 34, and paragraph 40, Southin, J.A. says as follows: “It is, in my opinion a fundamental principle of the common law of general application that one may not take the benefit of an instrument without also taking its burden.

As it is put in Brooms Legal Maxims 10 th Edition (London: Sweet and Maxwell, 1939), at page 485: We may also observe that the Scottish doctrine of “approbate and reprobate” is strictly analogous to that of election in our own law, and may, consequently, be property referred to in the maximum now under consideration. The principle in which this doctrine depends is, that a person shall not be allowed at once to benefit by and to repudiate an instrument, but that, if he chooses to take the benefit which it confers, he shall likewise discharge the obligation or bear the onus which it imposes.

To sum up, the respondents must take the whole of the policy booklet or none of it. If they take none of it, they have only the Declarations which contain no words defining the (insurer’

s) obligations.” [ 17 ] A similar analysis applies to this case. The Claimant’s entitlement to board the aircraft depended upon his having a ticket. In

current airline practice that is an e-ticket. The e-ticket comes with conditions. One of those conditions is the adoption of the carrier’s terms, conditions, rules, regulations and tariffs. One of those rules in this case permitted British Airways to cancel the final portion of the ticket following the Claimant’s “no show” on the prior leg. [ 18 ] The Claimant also asserts that he was not informed of the British Airways’ “no show” policy by the Defendant. Assuming without deciding that that allegation is correct, that allegation by itself does not constitute a cause of action.

Although the Notice of Claim does not allege negligence, a claim for compensation based on a failure to inform the Claimant of this “no show” policy in reality is a claim in negligence. While a travel agent no doubt owes a duty of care to its customer, in order to establish liability a claimant must prove the requisite standard of care and a breach of that standard by the defendant. The standard of care in this case is not self-evident and in my view requires an expert opinion, based on all of the relevant facts.

Here, where the Claimant was an experienced traveller, evidently had prior flights booked through the Defendant agency where the “no show” policy may have been brought to his attention, and where the “no show” policy for this type of ticket is on the evidence common among airlines, I am unable to conclude that the Defendant breached any duty or obligation to the Claimant if it failed to advise him at the time of booking the subject flight of the “no show” policy. [ 19 ] Accordingly the Claimant’s claim is dismissed.

The Defendant is entitled to its filing fee of $26.00 [ 20 ] Judgment accordingly. _______________________ Justice of the Peace Donald W. Yule, Q.C.