2014 QCCQ 12899, 2014 QCCQ 12899

Morin c. United Airlines 2014 QCCQ 12899 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL CITY OF LONGUEUIL Civil Division No: 505-32-031597-132 DATE: December 16, 2014 ______________________________________________________________________ BY THE HONOURABLE CLAUDE LAPORTE, J.C.Q. ______________________________________________________________________ ALEXANDRE MORIN and GENEVIÈVE DUFOUR Plaintiffs v.

UNITED AIRLINES Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim from defendant United Airlines ( United ) an amount of 3 377,70 $ in damages following the cancellation of a flight departing from Burlington, Vermont. [ 2 ] United filed a contestation denying liability on the following 3 basis :

(1) It offered the Plaintiffs an alternate carrier when the scheduled flight was cancelled.

(2) The flight was cancelled due to a force majeure.

(3) The United Airlines. Inc. Contract of carriage ( the contract of carriage ) does not provide for any indemnification when a flight is cancelled [1] . FACTS [ 3 ] In April 2013 Plaintiff Geneviève Dufour booked a flight over the phone with a United's agent for her, Alexandre Morin and their 3 young children. [ 4 ] Since the flight was scheduled to leave Burlington at 5:38 AM on July 9, 2013, the Plaintiffs and their children slept in a Burlington hotel the night before. [ 5 ] At 2:00 AM Morin communicated by phone with United in order to select 5 seats and he was told that the flight had been cancelled.

He was also informed that an arrangement had been made by United to book them on a US Airways flight. [ 6 ] Upon their arrival at the US Airways desk in the terminal they are told that there is no reservation for them. [ 7 ] United is immediately informed of the situation and tries to find an alternate solution. Eventually the Plaintiffs are presented with the following proposal: to take the bus the next day for Boston where they would board a plane for Chicago to yet another city and then, to their final destination, Fort-Lauderdale, Florida. [ 8 ] This solution does not suit the Plaintiffs for many reasons.

They thus look else- where and are able to find a Jet Blue flight that was to arrive in Fort Lauderdale the same day. However, United refused to pay for the said flight. Morin and Dufour nevertheless booked the Jet Blue flight and arrived late in the evening in Florida. [ 9 ] Plaintiffs acknowledge that they have been reimbursed 704.80 $ by the Defendant after they took their action. [ 10 ] Mrs. Deborah A. Zwisler Van Slambrook testified on behalf of the Defendant. She claims that Plaintiffs' tickets were bought over the net and not on the phone.

Consequently, she suggests, the Plaintiffs have agreed to be bound by the terms and conditions of the contract of carriage to which reference is made on their ticket.

[ 11 ] She adds that the original flight was cancelled because of bad weather ("severe weather") and that the Plaintiffs were so advised at 22:08 the day before.

The message was sent by e-mail. [ 12 ] She also contends that the Plaintiffs were "rebooked" for a 5:45 AM flight on the 10 th , adding that tickets were re-issued by US Airways for a flight leaving on the 9 th at 13:00. [ 13 ] Finally Van Slambrook claims that the Plaintiffs' recourse must fail because of the "force majeure" clause of the carriage contract (clause 24) and clause 3 A(i). [ 14 ] Dufour acknowledges that the reservation may have been made on line, but that it was the United agent who did it while she was on the phone with him.

She denies that they were offered a US Airways flight leaving at 13:00 on the 9 th . As far as being informed of the cancellation of the flight by United, she adds that the e-mail address used by United is incorrect. ANALYSIS [ 15 ] The limitations provided for in the Montreal Convention do not apply since the flight is not an international flight as defined in the said Convention. [ 16 ] The contract between the parties was formed when Plaintiff Dufour received United's acceptance to contract.

Since she was in the province of Quebec at the time, the contract is deemed to have been formed in the province of Quebec.

Article 1387 of the Civil Code of Québec (CCQ) states the following : A contract is formed when and where acceptance is received by the offeror , regardless of the method of communication used, and even though the parties have agreed to reserve agreement as to secondary terms. [ 17 ] The contract having been formed in the province of Quebec, and being a "consumer contract", the laws of the province de Quebec are applicable : 1384 C.c.Q. : A consumer contract is a contract whose field of application is delimited by legislation respecting consumer protection whereby one of the parties , being a natural person, the consumer, acquires, leases, borrows or obtains in any other manner, for personal, family or domestic purposes, property or services from the other party, who offers such property and services as part of an enterprise which he carries on. 3149 C.c.Q. : A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract of employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him. [ 18 ] United did not file a copy of the ticket that it pretends to have issued to Morin and Dufour.

The Plaintiffs testified that they were not provided with a "ticket" as such, but with a confirmation number detailing the flight informations. [ 19 ] Hence, the defendant cannot claim that the Plaintiffs are bound by the terms of the limitations set forth in the contract of carriage. [ 20 ] Moreover United has not shown that the Plaintiffs knew of the limitations set forth in the contract of carriage, nor that they even knew of the existence of such a contract : 1435 C.c.Q. : An external clause referred to in a contract is binding on the parties.

In a consumer contract or a contract of adhesion, however, an external clause is null if, at the time of formation of the contract, it was not expressly brought to the attention of the consumer or adhering party, unless the other party proves that the consumer or adhering party otherwise knew of it . (underlined by the tribunal) [ 21 ] It follows that United cannot oppose any of the exclusions of its contract of carriage. * * * * [ 22 ] The obligations of a carrier such as United are obligations of result. [ 23 ] In order to avoid liability when a specific result is not attained, a carrier may invoke force majeure.

A "force majeure" is defined in the second paragraph of

article 1470 C.c.Q. as follows : 1470 C.c.Q. : A person may free himself from his liability for injury caused to another by proving that the injury results from superior force, unless he has undertaken to make reparation for it. A superior force is an unforeseeable and irresistible event, including external causes with the same characteristics . (underline added) [ 24 ] The onus in upon the carrier to prove that its obligations were not carried out because of a force majeure.

[ 25 ] The evidence does not disclose the occurrence of such a force majeure. The weather documents filed by United do not establish that there was any significant weather problem on the eve of the flight nor in the morning.

Moreover, the testimony rendered by the Plaintiffs suggests that the weather conditions were just fine. * * * * [ 26 ] Finally, the tribunal finds that the proof offered by the Plaintiffs as far as United's offer of an alternate carrier is concerned is more credible than United's. * * * * [ 27 ] Consequently the Plaintiffs are entitled to be compensated for the damages suffered, including inconveniences, for a sum of 1 361,41 $ which is comprised of the following amounts : (a) 944,50 $ being the amount paid by the Plaintiffs for the Jet Blue Flight (less the amount received). (b) 216,91 $ for the night spent in a Burlington hotel. (c) 200,00 $ for the inconveniences suffered.

FOR THESE REASONS, THE COURT : [ 28 ] CONDEMNS the Defendant United Airlines to pay the Plaintiffs Alexandre Morin and Geneviève Dufour and the sum of 1 361,41 $ together with interest at the legal rate of 5% per annum and the additional indemnity as provided for in

article 1619 C.c.Q. calculated from the date of the service of the proceedings. [ 29 ] WITH COSTS (136,00 $) . __________________________________ CLAUDE LAPORTE, J.C.Q. [1] More precisely rule 3 (a) (i) : "UA shall not be liable for any consequential, compensatory, indirect, incidental or punitive damages…" and rule 24 (c) (Schelules are subject to change without notice) and (d) (Force majeure event).