2010 QCCQ 4172, 2010 QCCQ 4172

Aniakwa Nti c. Royal Air Maroc 2010 QCCQ 4172 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-113656-088 DATE: April 28, 2010 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ GEORGE ANIAKWA NTI [...] Montréal Québec [...] Plaintiff v. ROYAL AIR MAROC 75 rue Sherbrooke O.

Montréal Québec H2Y 1X2 -and- VOYAGES SAINI TRAVEL 6655 Côte-des-Neiges #255 Montréal Québec H3S 2B4 -and- VOYAGES LINKSTEL INC. 835 Jean-Talon O. Montréal Québec H3N 1S5 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] George Aniakwa Nti is suing Voyages Saini Travel, Voyages Linkstel Inc. and Royal Air Maroc for $1,000, alleging they failed to reimburse him the cost of a return airline ticket from Ghana, when he had to immediately return to Montreal.

The facts: [ 2 ] Plaintiff purchased a round trip ticket, from Voyages Linkstel Inc., to travel from Montreal to Ghana, leaving on July 24, 2008. Payment was made to Voyages Saini Travel, a wholesaler and the sister company of Linkstel. [ 3 ] Plaintiff intended to return on September 12, 2008. He claimed that his agent told him that the ticket was open and he could return at any time. [ 4 ] In August 2008, while he was in Ghana, he learned that he had to return immediately to Montreal. He called his agent to

have his ticket changed. She advised him to go to the airport. Royal Air Maroc officials, not finding Plaintiff's name on the manifest, did not allow him to fly back. [ 5 ] Plaintiff could travel from Ghana to Casablanca but there was no available seat on the flight from Casablanca to Montreal. He finally came back to Montreal by purchasing another ticket on a flight, returning to Montreal via New York. [ 6 ] Plaintiff sought a refund. His travel agent refused to reimburse him. Royal Air Maroc also refused to return the money for the unused portion of his ticket. [ 7 ] Plaintiff's agent, Ms.

Hassein, claimed that his ticket was an excursion ticket which is non refundable, non exchangeable and non re-routable.

She stated that the reference to a penalty fee, on Plaintiff's ticket, applies only prior to departure. [ 8 ] According to Royal Air Maroc's representative, the ticket was valid for six months on its airlines and during this time, Plaintiff could have changed his return date, subject to paying a penalty fee of $100 to $150, provided a seat was available in the same class as his original ticket. [ 9 ] In this case, Royal Air Maroc had no available seats in the “T” class, namely the category of Plaintiff's ticket, at the time he wished to return to Canada.

It was for that reason it did provide him with a return flight to Montreal. [ 10 ] Plaintiff maintained that none of these conditions had been explained to him.

Analysis: [ 11 ] Plaintiff is seeking the reimbursement of the cost incurred to purchase a return ticket when he was unable to change his flight in order to travel to Montreal from Ghana. [ 12 ] His travel agent maintains that she told him that his ticket, an excursion fare, was non refundable, non exchangeable and non re-routable. [ 13 ] The reality is that Plaintiff had the possibility of changing the date of his return, by paying a penalty, if seat availability existed in the same class of ticket during a six-month period.

Since no seat was available on the date Plaintiff wished to return, Royal Air Maroc could not provide the transportation he sought. [ 14 ] The Itinery/Invoice Plaintiff received from his agent states: “Charter flights are non refundable/nonchangable (sic) excursion /advance purchase ticket worldwide have a penalties for change after issue .” (our underlining) [ 15 ] Plaintiff's electronic ticket contains the following information: “Endorsements: Valid at only nonref nonendos subject to penalties” [ 16 ] The conditions indicated on Plaintiff's ticket are incomprehensible.

His ticket indicates that it is nonrefundable but subject to penalties, which makes no sense. [ 17 ] His invoice indicates that charter flights are non refundable or changeable while excursion tickets have penalties attached, when changes are made. [ 18 ] Since Plaintiff had an excursion ticket, a change in flight was permissible provided he paid a penalty. There is no indication that the change must be made within six (6) months. Moreover, there is no mention that the change is limited to availability in the same class of ticket. [ 19 ]

Article 1432 of the Civil code of Quebec states: In case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer. [ 20 ] The Consumer Protection Act [1] stipulates that goods or services provided must conform to the statements made by the merchant regarding such goods or services.

The statements are binding on the merchant. [ 21 ] The travel agent has an obligation of result and of conformity and cannot omit important facts regarding the services he or she provides. It is the agent's responsibility to assure that the tickets that are issued contain all the prevailing conditions and that their clients comprehend the conditions governing the ticket they are purchasing.

This clearly was not the case in this instance. [ 22 ] Having failed to provide the requisite information, the agent is responsible for the loss suffered by Plaintiff, less the $150 penalty he would have paid to change his ticket. Given the absence of any “lien de droit” between Royal Air Maroc and Plaintiff, Royal Air Maroc cannot be held responsible for the claim. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action;

CONDEMNS Voyages Saini Travel and Voyages Linkstel Inc. solidarily to pay George Aniakwa Nti the sum of 850$ plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil Code of Quebec , plus the judicial fees of $98. DISMISSES Plaintiff's action against Royal Air Maroc, with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: February 22, 2010