2012 QCCQ 5771, 2012 QCCQ 5771

Zaychenko c. Société Air France 2012 QCCQ 5771 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-119646-091 DATE: June 27, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ NATALIYA ZAYCHENKO [...], Montréal, Qc., [...] Plaintiff v.

SOCIÉTÉ AIR FRANCE 2000, Mansfield, Montréal, Qc., H3A 3A3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Nataliya Zaychenko, is claiming $7,000 from Société Air France (“Air France”), alleging that it charged her for extra baggage. In addition, she claims she was insulted by Air France representatives during her journey. Air France denies responsibility.

The evidence: [ 2 ] Plaintiff purchased a return business class ticket to travel from Montreal to Cairo, with a stop in Paris, leaving on June 20, 2009. She was permitted 2 bags, 32 kilos each. [ 3 ] While in Cairo, Plaintiff decided to extend her vacation. She purchased another airline ticket for a flight from Paris to Kiev, with a return flight to Paris. No business class seats were available. Her ticket was for voyageur class. With such a ticket, based on international standards, passengers are allowed 1 bag weighing 20 kilos. [ 4 ] Plaintiff's luggage had been checked through from Cairo to Kiev.

On her return flight, when Plaintiff went to the business class counter in Kiev, she was informed her luggage would not be checked through to Montreal. The representative was rude to her and called her a princess. Plaintiff asked for her name. The representative removed her name tag and pushed it towards Plaintiff's face. [ 5 ] Plaintiff had 3 bags weighing 73 kilos. Air France wanted to charge her for all her luggage. Plaintiff's girlfriend, who was travelling with her, took one of the bags.

Air France would not allow Plaintiff to bring another piece of luggage onto the plane, as carry on luggage, although she had done so on her way to Kiev. [ 6 ] According to Air France's records, two of Plaintiff's bags weighed 46 kilos and Plaintiff's third bag weighed 27 kilos. Since passengers are permitted only 20 kilos, she was charged for the excess weight. Her bill came to 645 Euros ($1,083 CAN). Plaintiff claims the scale did not work and her bags were not weighed. [ 7 ] Plaintiff was required to pay her bill at another counter.

When she arrived at the counter to pay for her excess luggage, the cashier was contacted by the check in representative, who asked whether “the princess” had paid her bill. When Plaintiff returned to the check in counter, the cashier in turn called to find out whether “the princess” had made it onto the flight. [ 8 ] Both conversations took place by way of walky talky, such that Plaintiff, as well as those in line, heard the discussion. Plaintiff was embarrassed and humiliated by the treatment she received.

Analysis: [ 9 ] Plaintiff is suing for the extra baggage cost she was charged and for the poor treatment she received from Air France's representatives at Kiev's airport. [ 10 ] Plaintiff was not travelling on business class when she returned to Paris from Kiev. On voyageur class, in accordance with international standards, she was only permitted one bag, weighing 20 kilos, as indicated on her ticket. [ 11 ] Plaintiff's luggage exceeded the total weight allowed. Contrary to Plaintiff's contention that the scale did not work in Kiev, the details of her luggage and their weight are documented by Air France.

Plaintiff had 3 bags for a total of 73 kilos. She checked in 2 of her bags, totalling 46 kilos, resulting in an excess of 26 kilos. She was properly charged 15 Euros for each kilo of additional weight. [ 12 ] There was an additional charge for Plaintiff's third bag, which was checked in by Plaintiff's friend. Plaintiff's third bag weighed 27 kilos. Air France's documents show that Plaintiff's friend, listed as “Kozhanovachevrolet” , sitting in seat 7c, checked two pieces, namely Plaintiff’s bag of 27 kilos plus another bag for a total of 37 kilos.

Since the friend was also entitled only to 20 kilos, she had an excess of 17 kilos, which Plaintiff paid. [ 13 ] Plaintiff submits that her friend, whose name is Irena Grega, only had a small light bag and she was not sitting in row 7c. Plaintiff contests the amount charged, submitting that her friend had a small bag, which weighed little. [ 14 ] It is not possible to determine the weight of Ms. Grega's luggage.

However, the records show that, instead of being charged for 27 kilos of excess weight for her third bag, Plaintiff was charged for only 17 extra kilos, by combining her third bag with her friend’s luggage. [ 15 ] Plaintiff has the burden of proof. She has not established by preponderant evidence that her friend's luggage weighed less than 10 kilos. She has also not established any error with respect to the total weight of her excess baggage or the amount she was charged.

In the absence of such proof, the Court cannot reimburse her for her costs. [ 16 ] There remains the question of the treatment received by Plaintiff in Kiev. Plaintiff described the insulting behaviour displayed by Air France's representatives towards her. [ 17 ] Plaintiff expected to be travelling business class and failed to realize the limitations that existed on the number of bags she was allowed to take or the weight restrictions. She was also not prepared for the fact that her luggage would not be transferred through to Montreal.

However, her displeasure about the unexpected situation she faced in Kiev does not entitle Air France representatives to treat her inappropriately or to ridicule her, particularly in front of other passengers. [ 18 ] Plaintiff submits that she was insulted and humiliated.

Article 1457 of the Civil code of Quebec states that: Every person has a duty to abide by the rules of conduct which lie upon 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 responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. [ 19 ] In addition, Air France is responsible for the acts of its employees.

Article 1463 of the Civil code of Quebec states that the “principal is liable to reparation for injury cause by the fault of his agents and servants in the performance of their duties…” [ 20 ] Accordingly, Plaintiff is entitled to compensation for the shabby treatment she received from the employees of Air Canada. She is claiming a total of $7,000 which includes the improper treatment to which she was subjected. She says she was humiliated in front of the other passengers. [ 21 ] The Court considers her claim to be excessive.

In light of the fact that the inappropriate behaviour was of a very short duration and there is no evidence that Plaintiff was known to the other passengers, other than her friend who was travelling with her, the Court limits the damages to the nominal amount of $250. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Société Air France to pay Nataliya Zaychenko the sum of $250 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec , since August 3, 2009, plus judicial fees of $157. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: May 28, 2012