2021 QCCQ 8928, 2021 QCCQ 8928

Malakouti c. Air Canada 2021 QCCQ 8928 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-159079-187 DATE : September 3 rd , 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ KEVIN MALAKOUTI Plaintiff v.

AIR CANADA Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Kevin Malakouti claims $15,000 from the airline Air Canada for trouble, annoyance, suffering, and inconvenience he experienced as a result of a young child’s diaper being changed in the business class cabin of flight AC302. [ 2 ] Mr. Malakouti alleges that Air Canada was idle, careless, and negligent in its failure to act during and after this incident. [ 3 ] Air Canada contests the claim and considers that it committed no fault.

It alleges that it fulfilled its contractual obligations towards the plaintiff and believes the claim to be without legal or factual merit. It also regards the plaintiff’s action as abusive, although it does not seek a monetary condemnation against him. Issues [ 4 ] The Court must answer the following questions: 1. Has the plaintiff established the defendant’s civil liability by demonstrating a personal fault or a fault on the part of its subordinates, damage, and a causal connection? 2. If so, what damages is the plaintiff entitled to obtain? background [ 5 ] On June 3, 2018, Mr.

Malakouti was a business class passenger on flight AC302 from Vancouver to Montreal. [ 6 ] According to his recollection, while the flight was under way and the cabin crew were serving the meals, he observed a passenger in his

section who was changing her young son’s diaper directly on the airplane seat. [ 7 ] Mr. Malakouti was immediately offended by this situation, and he informed the flight attendants to act accordingly. As he recounts the incident, and he is very persuaded of it, the child’s mother was flouting the basic rules of propriety and hygiene. [ 8 ] By the time Ms. Pirea, the in-charge flight attendant, arrived at the front of the airplane, the child was already wearing his diaper, and the mother was holding the urine-soiled diaper in her hand. Ms.

Pirea told her where the toilets were and instructed her to use them in the future. [ 9 ] Mr. Malakouti demanded that the in-charge flight attendant send the passenger and her child to the back of the plane. Ms. Pirea refused to move the mother and her child to economy class because they had paid for business class. [ 10 ] The plaintiff testified that he had a very bad flight. He remembers that the air in the cabin stank of urine and excrement, and that he was worried about inhaling contaminated germs and aerosols. He spent the rest of the trip with a damp cloth over his face.

At the hearing, he compared the situation to that of prisoners being tortured with cloths being placed over their mouths then being sprayed with

water. [ 11 ] On June 9, 2018, the plaintiff wrote Air Canada to complain about this incident. In his email, he explained that he had barely recovered physically from everything he had endured and that he wanted to speak with someone in charge. He also wanted to be given access to the incident report that he knows was prepared by the in-charge flight attendant (P-5). [ 12 ] The evidence adduced at the hearing shows that these requests were never granted. He did not manage to speak with anyone, and he did not obtain the report he sought.

Indeed, Air Canada did nothing more than write a single letter in which it deplored the situation and offered him a 15% discount on his next trip (P-5). To the plaintiff, who already had a World Travel Pass and had collected more points than he needed to travel anywhere he wanted to go for free, the answer was dissatisfying and increased his frustration. [ 13 ] On October 15, 2018, Mr. Malakouti filed his application before the Small Claims Division.

He claims $15,000 in damages for suffering and trouble endured during the trip and $10,000 for the suffering and trouble he experienced upon his return, an amount he reduced to $15,000 in consideration of the jurisdiction of the Small Claims Division. [ 14 ] At the hearing, Mr. Malakouti asked to amend his application to claim punitive damages and other, Charter -based damages, which the Court refused given the tardiness and the requirements for requesting amendments under

article 206 of the Code of Civil Procedure . [1] Despite this refusal, the plaintiff focussed his testimony essentially on the arrogance that Air Canada displayed towards him, and he explained how his constitutional rights were flouted.

ANALYSIS AND JUDGMENT [ 15 ] The Court begins by recalling the civil law rules of evidence. [ 16 ] A person seeking to assert a right must prove the facts on which his or her claim is based through evidence that renders the existence of the facts underlying the claim more probable than their non-existence. [2] [ 17 ] While the evidence adduced need not lead to absolute, scientific, or mathematical certainty of the facts alleged, it must be sufficiently clear and convincing to satisfy the balance of probabilities test, to render the fact in dispute probable. [ 18 ] If the evidence is not sufficiently convincing or if it is contradictory and the judge cannot determine where the truth lies, the party that has the obligation to convince the Court of the merits of his or her claim will lose, in whole or in part. [ 19 ] On the merits of the dispute, because a legal relationship exists between the parties, Mr.

Malakouti’s claim is based on the rules of civil liability. The relevant statutory provisions are the following: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody. 1458. Every person has a duty to honour his contractual undertakings. Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. 1463.

The principal is bound to make reparation for injury caused by the fault of his subordinates in the performance of their duties; nevertheless, he retains his remedies against them. [3] [Emphasis added.] [ 20 ] Under the legal framework governed by

article 1458 of the Civil Code of Québec (“ C.C.Q. ”), the plaintiff must establish the following three elements: a fault, an injury, and a causal connection between the two. [ 21 ] As for the facts and actions alleged against the in-charge flight attendant and the other unnamed flight attendants, the plaintiff benefits from a presumption of liability scheme whereby he need prove only their fault to establish the defendant’s liability.

Put simply, Air Canada would be liable for the injury caused by its employee or employees to the extent that the wrongful act of the subordinate or subordinates occurred in the performance of his, her, or their duties. [ 22 ] Since the plaintiff was travelling between Vancouver and Montreal, Air Canada relies on it’s domestic tariff, which establishes the scope of its contractual liability as follows: R. Responsabilités limitées – Dispositions générales

À moins de dispositions contraires aux présentes ou dans d’autres lois applicables : Le transporteur n’est pas responsable en cas de décès, de blessure, de retard, de perte ou d’autres dommages de quelque nature que ce soit (ci-après désignés collectivement par « dommages » dans le présent tarif) touchant les passagers ou les bagages non enregistrés, qui résultent du transport ou d’autres services accessoires afférents assurés par le transporteur, à moins que ces dommages ne soient le fait de la négligence du transporteur.

Le transporteur n’est pas responsable des dommages découlent directement et uniquement de sa conformité aux lois, aux ordonnances, aux exigences et aux règlements gouvernementaux ou de l’omission du passager de s’y conformer. […] Le Transporteur n’est aucunement responsable des dommages punitifs, exemplaire ou tout dommage sans lien de causalité suffisant, qui découlent, de quelque manière que ce soit, d’un acte ou d’une omission commis par celui-ci, ses employés ou ses mandataires, peu importe si cet acte ou cette omission ont été commis ou non par négligence, et que le transporteur savait ou non que des dommages pouvaient en découler. […] Toutes les réclamations sont sous réserve de la preuve du montant des pertes subies.

Le transporteur peut rejeter toute réclamation pour perte ou dommage fondée sur des données mensongères concernant la nature ou le montant de la perte ou du dommage. Le transporteur peut aussi rejeter toute réclamation lorsque le passager ne fournit pas une preuve de la perte sous forme de reçu d’achat. [4] [ 23 ] Let us now begin the analysis of the issues with these legal precepts in mind. 1.

Has the plaintiff established the civil liability of the defendant by demonstrating a personal fault or a fault on the part of its subordinates, damage, and a causal connection? [ 24 ] The Court will begin considering the case from the perspective of the civil liability of the principal under

article 1463 C.C.Q. [ 25 ] The plaintiff faults the defendant’s subordinates for not having acted promptly and firmly to prevent and/or control the incident that took place on board. [ 26 ] This fact, once stated by the plaintiff, is not otherwise documented. While the Court understands that Mr.

Malakouti was particularly disgusted to witness a four-year-old boy’s diaper being changed in full view in the cabin, this tells it nothing about the standard or guideline the cabin crew failed to meet or breached. [ 27 ] Because civil fault is defined as legally unacceptable conduct according to specific parameters, the plaintiff had to establish this objective standard and demonstrate how and why the conduct of the defendant’s subordinates derogated from this standard to such a degree that it should be characterized as faulty by the Court. [ 28 ] The absence of such evidence is fatal to the plaintiff’s action. [ 29 ] But there is more. [ 30 ] The version of the events of June 3, 2018, provided by the in-charge flight attendant Ms.

Pirea and flight attendant Christopher Dirk, who was then a passenger of the business class, contradicts the plaintiff’s statements. [ 31 ] According to these two witnesses, the incident at issue did not take place during meal service but during the final minutes of boarding, while the airplane was still on the ground. [ 32 ] They also both state that Ms.

Pirea acted promptly by informing the passenger that she should use the toilet to change her child, as it was fully functional and adapted for this purpose. [ 33 ] Furthermore, these two witnesses denied any subsequent or residual foul odours and were under the impression that the diaper was soiled with urine only. Mr.

Dirk added that he has a particularly sensitive nose and that he would not have missed any lingering smells had there been any, especially since his seat was very near the spot the diaper was changed [ 34 ] The two witnesses for the defendant also state that the mother acted promptly and that no business class passengers complained except for the plaintiff, who insistently protested the situation throughout the entire flight. [ 35 ] The Court finds that Ms. Pirea and Mr. Dirk are credible witnesses. Their version was presented concisely and without exaggeration, unlike the plaintiff’s.

The witnesses also support their verbal and written statements with notes taken contemporaneously to the incident, and their version of the facts has not been changed, [5] contrary to the plaintiff’s. [ 36 ] Finally, Air Canada’s representative told the Court that no written complaints about this incident from any passengers on board flight AC302 were received aside from Mr. Malakouti’s. [ 37 ] Ultimately, on this first aspect, the Court finds that the plaintiff’s version of the facts is deficient and riddled with exaggerations, and that his evidence of the fault of the defendant’s subordinates is lacking.

[ 38 ] For these reasons, his claim based on the civil liability of the principal [6] is dismissed. [ 39 ] Let us now move on to the analysis of the case from the perspective of civil liability under

article 1458 C.C.Q. [ 40 ] In this respect, the Court will consider Mr. Malakouti’s recriminations of poor customer service and, in particular, what he claims was an unjustified refusal to give him access to the flight report or the incident report relating to the diaper-changing episode. [ 41 ] To begin, it is common ground that a report was prepared. It is also admitted by Air Canada that this report is no longer available because it has been lost. [ 42 ] The plaintiff questions the loss of the report.

He expressly states that the report exists and that the defendant is deliberately hiding or withholding it because it believes that revealing the contents would deal a fatal blow to its case. [ 43 ] The plaintiff, who is persuaded of this premise, alleges that the defendant is a contemptuous and arrogant corporation that is kept afloat by money from Canadian taxpayers. [ 44 ] For that reason, and for many others that the Court finds irrelevant to the resolution of this dispute, Mr.

Malakouti invites the Court to render an authoritative judgment with precedential value that would bring Air Canada to heel and teach it that it can no longer ignore all the rules with impunity. [ 45 ] This is the context for the plaintiff’s claim for punitive damages under the Charters for the violation of his dignity and constitutional rights.

He adds that when he receives this money, he will immediately donate it to organizations that fight against Air Canada. [7] [ 46 ] Obviously, the plaintiff has strayed from the legal framework that he deliberately chose in October 2018, which was to claim damages for the inconveniences suffered during flight AC302 and upon his return to Montreal. [ 47 ] The Court does not intend to accept his invitation, nor does it consider it useful to respond to the arguments he raises in his submissions, other than to remind him that the Court’s mission is to rule on disputes on the basis of established facts, not mere allegations. [ 48 ] Ultimately, given the absence of objective facts establishing faulty conduct by the defendant or its subordinates, it is not appropriate for the Court to continue its analysis and assess the damage alleged by the plaintiff and the causal connection between the fault and the damage. [ 49 ] For all of these reasons, the Court dismisses his application. [ 50 ] Finally, it is also not appropriate to discuss whether or not Mr.

Malakouti’s legal claim is abusive since the defendant does not seek any monetary award on the basis of such a determination. FOR THESE REASONS, THE COURT: [ 51 ] DISMISSES the application; [ 52 ] THE WHOLE , with legal costs. _________________ Jo Ann Zaor, J.C.Q. Hearing dates: February 23, 2021, and June 28, 2021