2016 QCCQ 8866, 2016 QCCQ 8866

Trasente c. Air Canada 2016 QCCQ 8866 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-144013-143 DATE: May 19, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ FERNANDO TRASENTE […] Montréal, Qc […] Plaintiff v.

AIR CANADA 7373, Côte-Vertu Ouest Ville Saint-Laurent, Qc H4Y 1J2 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Fernando Trasente, sues Air Canada for damages relating to a return flight from Rome to Montreal, scheduled for August 4 th , 2014. He asserts that he arrived in time for the flight, but because of overbooking, Air Canada did not honour the ticket.

He alleges he was forced to stay overnight at the airport and take a flight home purchasing a ticket on Air Transat from Rome to Toronto, $ 1,242.89 and a flight from Toronto to Montreal, Air Canada $ 318.80, this itinerary having been set up for him by an agent working through his sister, in Montreal, with no assistance from Air Canada. [ 2 ] He also seeks $ 300 as compensation for the inconvenience of staying over night at the airport. [ 3 ] Air Canada’s defence is simple: it states that if Mr Trasente missed his flight, it was because he failed to check-in no later than 60 minutes prior to the scheduled departure.

The terms in force between the parties under Air Canada’s International Tarif Rule 70(C) (D-6), state that the carrier is not liable to a passenger for loss or expense due to failure by that passenger to comply with the rule respecting check-in and boarding time limits. ISSUES [ 4 ] The Court must determine whether Air Canada is responsible to Mr Trasente for the fact that he did not board the flight and had to pay for alternative travel.

FACTS [ 5 ] Mr Trasente drove from an area south of Rome the day of the flight, dropping off his car at the car rental depot and taking the shuttle to the airport where he stood in line with other passengers awaiting flight ZX1921 set to leave at 12:55 pm. Air Canada agents were operating the desk, taking baggage and processing travellers. [ 6 ] He spoke to some travellers in line with him who already held boarding passes that had been issued to them the day before when a similar flight was cancelled for technical reasons.

He was by no means the last person in line when the Air Canada agents informed the passengers that there would be no more passengers accepted for the flight. He was directed to another booth in the airport where people with problems stood in line.

[ 7 ] That process did not result in him having any solution to his problem and when he return to the Air Canada desks, the Air Canada personnel had left and another airline had taken its place. [ 8 ] He attempted to reach Air Canada by phone or to speak to someone in the airport representing Air Canada. He could not find such a person in the airport and he was not successful in reaching Air Canada by telephone. He did, however communicate with his sister in Montreal.

His sister was able to get in touch with the travel agent who had booked the trip initially and she secured a reservation for him the next day on an Air Transat flight to Toronto and a local flight from Toronto to Montreal on Air Canada. The purchase of these tickets resulted in the charges mentioned above totalling $1,061.69. [ 9 ] The travel agent processed a refund of $ 288.38 to refund him the taxes on the unused portion of his Air Canada ticket from Rome. His net expense was therefore $ 1,273.31.

He also suffered the inconvenience of sleeping at the airport in Rome. [ 10 ] His computer was stolen from him, but this is not a loss that can be attributed to Air Canada. [ 11 ] Air Canada has no record of Mr Transente’s presence at the airport, because he never reached the counter. [ 12 ] Paradoxically, the documentation provided by Air Canada demonstrates that the plane left with 97.3 % of its 264 seats occupied.

Presumably then, there were seven empty seats, including the one that would have been assigned to Mr Trasente. [ 13 ] Mr Trasente’s understanding that he was bumped because of overbooking does not seem possible. The representative from Air Canada, Marie-Hélène Desgroseillers, informed the Court that he must have arrived at the airport too late to meet the 60-minute deadline, prior to the plane’s scheduled departure. [ 14 ] She states that, if he arrived at the counter after that time, it would have been impossible for Air Canada to put him on the flight.

She therefore infers that he must have been late if he was not admitted to the flight. ANALYSIS [ 15 ] If Mr Trasente indeed arrived too late, Air Canada would have been entitled to refuse to allow him to take the flight. [ 16 ] The evidence shows, however, that Mr Trasente, although he could not give the exact time, appears to have arrived within the time that was required.

He was in good company with a lot of other passengers, many of whom boarded the flight and others who, like him, were told they should leave the line and go to another area of the airport to see what could be done about the fact that no more passengers were being admitted. [ 17 ] It is not a foregone conclusion that Mr Trasente was late merely by virtue of the fact he was not admitted to the flight.

It may well be that the persons processing passengers were overworked and could not handle the volume of passengers who were waiting in line and who had been there within the 60 to 120 minute period stipulated in the rules. [ 18 ] Mr Trasente was not given the opportunity to register with the desk; he was simply turned away.

The fact that there were seven empty seats on the plane is an extremely curious fact, which lends to the inference that it was a problem for the agents to handle the volume they had in the window of opportunity afforded them or that Mr Trasente was simply misdirected away from the desk when he should not have been. [ 19 ] The Court accepts Mr Trasente’s testimony and concludes that it is probable that he was in line, along with other passengers, in advance of the 60-minute deadline but the clerks lacked the capacity to handle the volume of passengers. [ 20 ] When an airline is providing minimum times for presence at the desk in advance of a flight, it is up to the airline to make sure there are enough services available so that passengers can be processed within that timeframe.

If the lack of capacity makes it impossible for passengers to make it to the desk within a reasonable time of presenting themselves in the queue, they should not be considered late. [ 21 ] In this case, Mr Trasente and others were turned away from the counter before it was actually closed, which contradicts the assumption that he arrived in too short a time and was met with a counter that had closed. [ 22 ] Mr Trasente is therefore entitled to damages because of Air Canada’s failure to properly provide the resources to process his check-in within the allocated times, which the Court assesses at the net cost of $ 1,273.31 for the substitute tickets and $ 300 for the inconvenience of staying overnight at the airport [ 23 ] Air Canada argues that moral damages are not allowed pursuant to the provisions of

article 29 of the Montreal Convention:

Article 29 — Principe des recours Dans le transport de passagers, de bagages et de marchandises, toute action en dommages-intérêts, à quelque

titre que ce soit, en vertu de la présente convention, en raison d'un contrat ou d'un acte illicite ou pour toute autre cause, ne peut être exercée que dans les conditions et limites de responsabilité prévues par la présente convention, sans préjudice de la détermination des personnes qui ont le droit d'agir et de leurs droits respectifs. Dans toute action de ce genre, on ne pourra pas obtenir de dommages-intérêts punitifs ou exemplaires ni de dommages à un

titre autre que la réparation [ 24 ]

Article 29 excludes punitive and exemplary damages, and any damages that are not compensatory. Moral damages for inconvenience is a compensatory, not a punitive or exemplary damage [1] , and is therefore not excluded by

article 29. FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $ 1,350.07, together with interest at the legal rate and the additional

indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from August 12, 2014; CONDEMNS the Defendant to pay the Plaintiff’s costs for the judicial stamp in the amount of $ 106. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 25, 2016