2018 QCCQ 3310, 2018 QCCQ 3310

Herbert c.

Air Canada 2018 QCCQ 3310 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-154461-166 DATE: May 18, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ jesse herbert Plaintiff v. air canada Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Jesse Herbert claims damages of $14,911.59 from Air Canada for the mishandling of his checked baggage during a flight from Montreal to Buenos Aires, Argentina.

The baggage in question, a bicycle box containing the equipment and clothing needed for a 6-week cycling and camping tour of Argentina, was misplaced and delivered after a 17-day delay, forcing him to postpone his tour. [ 2 ] Mr. Herbert claims $14,379.60 for expenses incurred while awaiting his baggage in Buenos Aires, loss of enjoyment of his holiday, and related damages resulting from the delay.

He also claims $531.99 for the loss of certain items missing from the bicycle box when it finally arrived in Buenos Aires. [ 3 ] Air Canada admits that it is liable for delay and loss of baggage under the Convention for the unification of certain rules for international carriage by air (the “ Montreal Convention ”). It argues, however, that Mr. Herbert is only entitled to out of pocket expenses resulting from the delay, which it estimates at $1,425.50, an amount offered and refused by Mr. Herbert.

It also argues that the value of the missing items was not proven and, subsidiarily, that its liability on the whole of the claim is capped at 1 131 Special Drawing Rights [1] (“ SDR ”) pursuant to the Montreal Convention , which represents $2,273.33. [2] questionS in issue [ 4 ] Given the position of the parties, the case calls for the resolution of the following questions:

a) Is the Montreal Convention applicable and, if so, how does it affect Mr. Herbert’s claim?

b) What compensation is Mr. Herbert entitled to receive as a result of the delay in the carriage of the bicycle box?

c) Is Air Canada liable for the items missing from the bicycle box and, if so, for what amount? FACTUAL CONTEXT [ 5 ] In December 2015, Mr. Herbert purchased from Air Canada a round-trip ticket from Montreal to Buenos Aires, Argentina (via Toronto), departing on December 29, 2015 and returning on February 14, 2016. [3] He was travelling to Argentina for a 6-week bicycle and camping tour, which he had been planning for several months. [ 6 ] When he arrived at the airport on December 29, 2015, Mr.

Herbert checked a bicycle box in which he had packed all of the cycling and camping equipment as well as clothing needed for his tour. He had no other checked luggage, just a small carry-on bag. [ 7 ] Mr. Herbert boarded the plane, but after some delay, he was taken off and rebooked on a flight for the following day. He was told that his checked luggage, which was already on the plane, would proceed to Toronto (the first leg of his trip), where it would be set aside and retagged to travel with him to Buenos Aires. [ 8 ] When Mr. Herbert arrived in Buenos Aires on December 31, 2016, his bicycle box was missing.

Over the next several days, Mr. Herbert spent many hours on the phone with various representatives of Air Canada and Tam Airlines (who completed the last leg of his trip), trying to locate and recover the box, to no avail. It was finally found and delivered to him on January 16, 2016. [ 9 ] It turns out that as a result of a human error on the part of Air Canada, Mr. Herbert’s bicycle box was not set aside after being unloaded in Toronto.

It was placed by mistake in the baggage claims area, where it was picked up by another passenger, who stored it without even opening it, thinking it was hers. [ 10 ] Although Air Canada was in possession of this other passenger’s unclaimed bicycle box, it followed its standard procedure of entering the item in its log and waiting five days in the hope that a passenger would claim it. When it remained unclaimed after five days, the box was sent to Air Canada’s Montreal warehouse, where a representative eventually contacted the other passenger to advise her that

Air Canada was still holding her bicycle box. She then verified the box that she had picked up in Toronto and realized that it was Mr. Herbert’s. Air Canada recovered it and sent it on to Buenos Aires. [ 11 ] Mr. Herbert was forced to postpone his cycling trip and remain in Buenos Aires while awaiting his bicycle box, as it was not possible to purchase the specialized equipment needed in Argentina.

He made arrangements to have replacement equipment shipped to Buenos Aires and Air Canada offered to ship it at no additional costs, but this was not a feasible option due to the potential customs and duties. [ 12 ] In February 2016, Mr.

Herbert sent Air Canada a letter of demand and a detailed claim for compensation totalling $17,503.16. [4] In response, Air Canada sent him a cheque of $1,425.50, but instructed him that by cashing it, he would be giving full and final release and discharge of his claim. [5] He did not cash the cheque and filed his claim in the instant case for a reduced amount of $14,911.50. [6] ANALYSIS

a) Is the Montreal Convention applicable to Mr. Herbert’s claim and, if so, how does it limit said claim? [ 13 ] The Montreal Convention is an international treaty that has been given effect in Canadian federal law through the Carriage by Air Act . [7] [ 14 ] It establishes an exclusive set of rules that limit the types and amounts of claims that can be made against international airline carriers, but also facilitate a consumer’s claim by creating certain presumptions of air carrier liability.

It reflects a quid pro quo between limiting the liability of air carriers in international travel and facilitating consumer claims. [8] [ 15 ] The Montreal Convention applies to all carriage of persons, baggage or cargo where the place of departure and the place of destination are situated within the territories of two state parties or within the territory of a single state party, if there is an agreed stopping place within the territory of another state. [9] [ 16 ] The only recourses available under the Montreal Convention are set out in Articles 17 to 19. [ 17 ] A carrier’s liability for delay in the carriage of baggage is provided in

Article 19:

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. [Emphasis added] [ 18 ] A carrier’s liability for loss of baggage is provided in paragraph 2 of

Article 17:

Article 17 – Death and Injury of Passengers – Damage to Baggage (…) 2. The carrier is liable for damage sustained in case of destruction or loss of , or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier . However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage.

In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. 3. (…) [Emphasis added] [ 19 ] There are monetary limits to a carrier’s liability in case of delay or loss of baggage . These are provided in

Article 22, the relevant portions of which read as follows:

Article 22 — Limits of Liability in Relation to Delay, Baggage and Cargo 1. In the case of damage caused by delay as specified in

Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights. 2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger [increased to 1 131 effective as of December 30, 2009] [10] unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires.

In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger's actual interest in delivery at destination. (…) 5. The foregoing provisions of paragraphs 1 and 2 of this

Article shall not apply if it is proved that the damage resulted from

an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was

acting within the scope of its employment. (…) [Emphasis added] [ 20 ] There are also restrictions as to the type of damages recoverable under the Montreal Convention :

Article 29 — Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable . [Emphasis added] [ 21 ] The Montreal Convention clearly applies to Mr.

Herbert’s claim: the place of departure and destination (Montreal) are situated within the territory of a single state party (Canada) and there is an agreed stopping place in another state (Argentina). [ 22 ] Air Canada’s liability towards Mr. Herbert must therefore be analyzed within these limits of the Montreal Convention .

b) What compensation is Mr. Herbert entitled to receive as a result of the delay in the carriage of the bicycle box? [ 23 ] Air Canada admits its liability for the 17-day delay in the delivery of the bicycle box to Buenos Aires. The only issue for the Court to decide is the amount of compensation that Mr. Herbert is entitled to receive as a result of the delay. [ 24 ] Mr.

Herbert claims the following amounts: [11] ➢ Lodging (17 days @ $110,50/day): $1,878.50 ➢ Clothes and other items purchased: $1,913.10 ➢ Replacement flight: $1,340.00 ➢ Lost vacation time: $9,248.00 TOTAL: $14,379.60 [ 25 ] The Court will first consider, for each head of damages, whether Mr. Herbert has met his onus of proof [12] and is entitled to the amount claimed. It will then address the issue of the maximum liability provided in

Article 22 of the Montreal Convention . - Lodging [ 26 ] Mr. Herbert claims $110.50 per day for the 17 days during which he had to remain in Buenos Aires awaiting his bicycle box. [ 27 ] He did not, however, offer any receipts or other evidence to prove that he incurred expenses for lodging. In the absence of any such evidence, Mr. Herbert is not entitled to the amount claimed. - Clothes and other items purchased and related expenses [ 28 ] Mr.

Herbert has proven to the satisfaction of the Court that he purchased certain basic items (clothing, footwear and toiletries) that were needed while he waited for his bicycle box. [13] He also incurred expenses (taxis, long distance calls to follow up on the bicycle box, bus) in order to try to resolve the situation and minimize the impact of the delay. [14] [ 29 ] The Court is satisfied, on the facts, that these expenses were incurred as a result of the delay in the delivery of his baggage and Mr. Herbert is entitled to compensation for the full amount of $1,913.10 claimed. - Replacement Flight [ 30 ] Mr.

Herbert is not entitled to the $1,340 claimed for a replacement flight. He travelled from Montréal to Buenos Aires and back and Air Canada fulfilled its obligations towards him in this regard. No compensation is justified. - Loss of enjoyment of vacation time [ 31 ] Mr. Herbert submits that because of Air Canada’s negligence, he lost the enjoyment of 17 days of his 6-week cycling and camping tour and seeks compensation of $9,248 for this loss. [ 32 ] Air Canada submits that no damages for loss of enjoyment of vacation time are recoverable under the Montreal Convention , as such damages are excluded by

Article 29. [ 33 ] The Court disagrees. [ 34 ]

Article 29 excludes “ punitive, exemplary and any other non-compensatory damages ”. In the Court’s opinion, damages for loss of enjoyment of a holiday are compensatory in nature, however, and are therefore not excluded by

Article 29. Such damages may be non-pecuniary, and often difficult to quantify for the purpose of determining a damage award, but they are still intended to compensate a loss suffered. [ 35 ] The authorities that Air Canada brought to the Court’s attention deal mostly with the issue of whether psychological damage can form the basis of a claim based on liability for bodily injury pursuant to Article 17(1) of the Montreal Convention. [15] This is a narrower issue that turns on the wording of Article 17(1), which can justify a difference in

interpretation with liability for delay under

Article 19. [ 36 ] It is true that some decisions have ruled that damages for trouble and inconvenience are not recoverable under

Article 19, [16] but the Court prefers the reasoning adopted in recent decisions where this Court has ruled that such damages are compensable under

article 19 of the Montreal Convention . [17] [ 37 ] That being said, the approach used by Mr. Herbert to quantify this aspect of his claim is ill-founded. Mr. Herbert, who is a licensed engineer, calculated the average daily income of an engineer and multiplied this daily income by 17 days. Yet he does not claim that he was deprived of this income as a result of Air Canada’s fault or that he would have received this income if he had remained in Canada. [ 38 ] This is not the proper approach to determine the value of Mr.

Herbert’s loss, which should be based on the value of the holiday of which he was partly deprived. It is not easy to determine the value of Mr. Herbert’s loss in the circumstances. Doing so is easier where someone purchases a one-week all-inclusive holiday and arrives partway into the holiday as a result of air carrier delay. Here, Mr.

Herbert was in Buenos Aires and certainly benefited from some aspects of his holiday, although he was deprived of the enjoyment of a portion of the cycling tour that he had planned. [ 39 ] Taking into consideration the particular circumstances of this case, the Court considers that an amount of $200 per day is a reasonable compensation for Mr. Herbert’s loss of enjoyment.

Since he testified at trial that he would have likely stayed in Buenos Aires for two days before leaving on his cycling tour, the Court considers that a total compensation of $3,000 is reasonable. [ 40 ] This leaves the issue of maximum liability under

Article 22 of the Montreal Convention . Although the Court has concluded that Mr. Herbert has proven total compensable damages of $4,913.10, Air Canada’s liability for the delay in the carriage of the bicycle box is limited to 1 131 SDR or $2,273.33. [ 41 ] Mr. Herbert argued at trial that Air Canada’s conduct was so seriously negligent that the limitation of liability should not apply, referring to Article 22 (5) of the Montreal Convention : 5. The foregoing provisions of paragraphs 1 and 2 of this

Article shall not apply if it is proved that the damage resulted from

an act or omission of the carrier , its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result ; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment. (…) [Emphasis added] [ 42 ] Air Canada’s negligence was clearly proved. It is baffling that it took so long to locate the bicycle box and deliver it to Mr. Herbert, which reflects very poorly on Air Canada’s staff and processes.

Nonetheless, the Court cannot conclude in light of the evidence to an intentional or reckless conduct within the meaning of Article 22 (5). [ 43 ] Air Canada’s liability for damages resulting from the delay in the delivery of Mr. Herbert’s bicycle box is therefore limited to $2,273.33. [ 44 ] The Court will now turn to Mr. Herbert’s claim for the items missing from the bicycle box. This is a distinct claim involving a different fault on the part of Air Canada.

Air Canada’s potential liability in this respect is for loss of baggage based on a different provision of the Montreal Convention (Article 17 (2)). [ 45 ] The Court is of the opinion that the monetary limit to Air Canada’s liability applies separately to the two aspects of Mr. Herbert’s claim. In other words, even if the maximum amount has been reached on Air Canada’s liability for delay in the carriage of baggage, Mr. Herbert’s claim based on loss of baggage is recoverable and Air Canada’s potential liability in this respect is subject to its own monetary limit of 1 131 SDR.

c) Is Air Canada liable towards Mr. Herbert for the items missing from the bicycle box on arrival and if so, for what amount? [ 46 ] Mr. Herbert claims that certain items (a battery pack, extensions cables, microphones and a beard trimmer) were missing when it was remitted to him by Air Canada on January 16, 2016 and he claims their replacement value totalling $531.99. [18] [ 47 ] An air carrier’s liability for loss of baggage is presumed if it is proven that the loss took place while the baggage was in the charge of the carrier. [19] [ 48 ] To benefit from this presumption of liability, Mr.

Herbert must prove, on a balance of probabilities, that the bicycle box contained these items when he checked it prior to boarding in Montreal and that they were missing on arrival. In this respect, the Court accepts Mr. Herbert’s testimony that he packed the items in his bicycle box before checking it with Air Canada on December 29, 2015 and that the items were missing when he opened the box in Buenos Aires. [ 49 ] The Court also accepts Mr.

Herbert’s testimony that these items had been purchased within weeks of his departure and his explanations regarding the replacement value verified by him on the Amazon website. The Court accepts this as sufficient evidence of the value of the lost items. [ 50 ] Consequently, Air Canada is liable to Mr. Herbert for the amount of $531.99 for loss of baggage. FOR THESE REASONS, THE COURT: GRANTS the action part;

CONDEMS Air Canada to pay to Jesse Herbert an amount of $2,805,32, together with interest at the legal rate, plus the additional indemnity stipulated in

article 1619 of the Civil Code of Quebec , from March 13, 2016; WITH LEGAL COSTS of $200 representing the fees paid on the Application. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: January 16, 2018