2012 QCCQ 2113, 2012 QCCQ 2113

Cajolais c. WestJet Airlines 2012 QCCQ 2113 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-125154-106 DATE: March 12, 2012 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JEAN-PAUL CAJOLAIS […] LaSalle, Quebec […] Plaintiff v. WESTJET AIRLINES 22 Aerial Place, N.E.

Calgary, Alberta T2E 3J1 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Jean-Paul Cajolais, sues Westjet Airlines ("Westjet") for damages in the amount of $1,500 alleging that he was provided with inaccurate information by Westjet when he arrived April 14 th , at the Orlando International Airport to board a flight to Montreal. [ 2 ] Having lost his passport, he alleges that he was told that it would not be possible for him to fly anywhere without his passport. [ 3 ] Later in the day, he learned through his wife who had contacted the Canadian consulate authorities that he could fly within the US without a passport.

He then decided to book a flight to Plattsburgh, New York, where he was picked up by his wife by car. [ 4 ] Mr Cajolais' address in LaSalle, Quebec, is a short distance by car to the Plattsburgh airport. [ 5 ] Because the flight only left a few days later he stayed in hotel accommodations for two nights. [ 6 ] Ironically, he found his passport after having made these arrangements and committed to them financially. [ 7 ] Wesjet affirms that it would have, according to its policy, accommodated Mr Cajolais on a later flight if he could secure a proper Canadian passport. [ 8 ] Westjet filed a written Contestation signed by its Montreal attorney.

This document is a nullity under the principles explained by Mr Justice Christian Tremblay in Gestion Olymbec [1] . [ 9 ] Given the presence of a proper representative of Westjet at the hearing, Mr Richard Bartrem, the Court permitted that the grounds of defence be given orally. [ 10 ] Whereas the written Contestation had only dealt with legal issues, the Court was able to ascertain from Westjet's representative that it had a factual defence based on its business records from which it was able to print up the facts entered into the file the day of the events by the person who spoke to Mr Cajolais at the counter. (D-1) [ 11 ] The file indicates that Mr Cajolais come up to the counter without a passport and was advised to contact the Miami Embassy to try to get a replacement passport and to contact Westjet to change his flight to a later date.

[ 12 ] One of the points Mr Cajolais raises is that he should have been given the benefit of Westjet's guaranty set out in its publicity (P-8). The relevant passage states: Toujours vous ramener à la maison. Peu importe votre destination, vous pouvez compter sur nous pour vous accommoder en vous réservez un siège sur un autre vol si l'horaire change ou que votre vol est annulé. [sic] [ 13 ] While this is a fairly limited guaranty, Westjet's representative affirmed that they would have applied it to this type of situation.

Westjet has flights out of Miami where the Canadian consulate is located and Mr Cajolais would have been eligible for a flight from Miami to Toronto and then from Toronto to Montreal. [ 14 ] Sadly, Mr Cajolais had already made his alternative travel arrangements before he found his passport and, because of the financial investment he had made, decided not to travel to Miami.

He made no further inquiry with Westjet. [ 15 ] Sadly, as well, he asserts that he was not aware that Westjet would have reassigned him to another flight. [ 16 ] In the Court's view, the entries made into the Westjet database, which are contemporaneous with the events, are an appropriate basis to confirm that Westjet acted reasonably, according to his policy, and offered Mr Cajolais the option of changing his flight if and when he could obtain his passport. [ 17 ] Mr Cajolais is a frequent flyer, travelling, according to his testimony, every couple of weeks by plane within the United States. [ 18 ] The allegation in his letter of demand is that he was told that he could not get on any plane without a passport.

That understanding of Westjet's information is not particularly credible.

What is more likely is that he was told that he could not board a Westjet flight without a passport, because Westjet only runs on international routes and would not have been able to accommodate Mr Cajolais by letting him off along the way in New York as he apparently suggested to them. [ 19 ] It is unfortunate that Mr Cajolais did not locate his passport, which was misplaced within his luggage, before he made his alternate travel arrangements but this is something beyond what would be a direct and foreseeable consequence even if the Court was of the view that Westjet had been negligent in the way it attempted to help Mr Cajolais early in the morning of April 14 th , 2010. [ 20 ] Westjet should however be condemned to pay Mr Cajolais' costs. [ 21 ] If it had made the allegations that were crucial in this case from a factual point of view in its written defence and produced exhibit D-1, Mr Cajolais would have had a full understanding of Westjet's defence. [ 22 ] Its written Contestation was based, among other things, on a part of the tariff applicable to its contract of carriage that purports to limit liability for inaccurate information about travel-document-related issues. [ 23 ] In fact, its more effective defence in the present case was to simply demonstrate what it had on record concerning the facts. [ 24 ] Both parties' interests would have been better served if this information had been brought forward earlier and, at the very latest within the time periods provided for the production of documents prior to trial. [ 25 ] A party should not hold back information that might assist the other in evaluating the strength of the case.

Doing so can take a party by surprise. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action; CONDEMNS the Defendant, Westjet Airlines, to pay, to the Plaintiff, judicial costs in the amount of $70. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: March 1 st , 2012