2011 QCCQ 11183, 2011 QCCQ 11183

Nikanpour c. Air France-KLM, s.a. 2011 QCCQ 11183 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-123012-108 DATE: August 30, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ LAMÉE VARQA NIKANPOUR […], Hemingford, Qc., […] Plaintiff v.

AIR FRANCE-KLM S.A. 2000, Mansfield #510, Montreal, Qc., H3A 3A3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff Lamée Varqa Nikanpour is suing Defendant Air France-KLM S.A. for $2,999.99, after Defendant failed to provide her with a wheelchair she had requested when she returned from Europe. Defendant denies the claim. The evidence: [ 2 ] On December 1, 2009, Plaintiff suffered an accident while she was in Vienna and fractured her right pelvic bone.

She was scheduled to return to Montreal on December 19, 2009. Her daughter requested that the airline provide wheelchair assistance since Plaintiff had been advised by her physician not to walk. Plaintiff was assured that such assistance would be available. [ 3 ] Defendant provided Plaintiff with a wheelchair at the airport in Vienna and at a stopover in Amsterdam.

However, there was no wheelchair available when she arrived in Montreal. [ 4 ] After leaving the plane, Plaintiff was driven a short distance in an electric cart to an elevator and was told to get off and wait on a bench until a wheelchair arrived but no one came with any means of transportation. After waiting for over 45 minutes, an airport employee helped her walk to the luggage area.

After obtaining her luggage, she was left on her own, to push her cart to the exit. [ 5 ] According to Plaintiff, given her injury, it was not only extremely painful to walk but as well she aggravated her condition by putting weight on her feet. She testified that she still suffers pain. [ 6 ] Defendant stated that there were six requests for wheelchairs but a limited number are available. In addition, only two agents are authorized to go beyond the customs area. When wheelchairs are not available, an electric cart is offered.

Defendant claimed Plaintiff refused transportation in a cart, a fact Plaintiff denied. [ 7 ] Defendant maintained there are different categories of wheelchairs. Certain wheelchairs are designated for persons who are unable to walk. Its file indicated that Plaintiff needed a regular wheelchair, which for Defendant meant that Plaintiff was able to walk. Defendant submitted the responsibility for choosing the type of wheelchair lies with the travel agent. Analysis:

[ 8 ] Plaintiff's physician stipulated in writing that Plaintiff required assistance at the airport and a wheelchair would be necessary to transport her to the exit to avoid further complications and pain. [ 9 ] Defendant listed its wheelchairs as WCHC, WCHB and WCHR. Defendant's representative explained that WCHR stands for a regular wheelchair but was unable to provide an explanation for the other categories or the distinction between the different types. [ 10 ] Defendant claimed Plaintiff had requested a regular wheelchair and therefore was able to walk.

Other wheelchairs are designated for people who are not mobile. [ 11 ] Defendant's explanation makes little sense. The purpose of a wheelchair is to transport persons who cannot walk distances or who cannot walk at all. They are not used by physically able people. [ 12 ] The evidence established that Plaintiff was unable to walk and because of her condition, a wheelchair was requested. Defendant undertook to provide her with this means of transportation but failed to do so. [ 13 ] Defendant claimed Plaintiff did not wish to take an available electric cart but insisted on a wheel chair, a fact Plaintiff denied.

The evidence shows that the passenger who complained about the electric cart was not identified. Moreover, any type of transportation would have been acceptable. Plaintiff had, in fact, accepted to be transported in a cart but when she reached an elevator, she was told by an airport employee to wait until a wheelchair was provided. [ 14 ] However, no one arrived with a wheelchair, leaving Plaintiff, who is a senior citizen, alone for a considerable period of time. An employee who eventually arrived had no wheelchair.

As a result, Plaintiff had to walk to the luggage area and after retrieving her luggage, continue by foot, pushing her trolley, to the exit. [ 15 ] Defendant did not honour its obligations to Plaintiff and is therefore liable for the injury it caused. Plaintiff testified that she suffered and still suffers considerable pain. She took pain killers and anti inflammatory medication for eight weeks following her return from Vienna.

She maintains that her fracture was aggravated by Defendant's failure to provide her with a wheelchair, as promised. [ 16 ] In light of the evidence, the Court considers that Plaintiff is entitled to compensation for the pain and suffering she endured because of Defendant's lack of service and its failure to respect its undertaking. However, in the absence of a medical report to establish the alleged aggravation of her fracture, the Court limits the award to $300.

FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Air France-KLM S.A. to pay Lamée Varqa Nikanpour the sum of $300 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since April 17, 2010 and judicial fees of $100. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: July 5, 2011