2021 QCCQ 10243, 2021 QCCQ 10243

Perez Pinzon c. Air Transat AT inc. 2021 QCCQ 10243 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL "Civil Division" No: 500-32-705870-188 DATE: October 21, 2021 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ MARTHA ENITS PEREZ PINZON and SORIN ELSKOF Plaintiffs v. AIR TRANSAT A.T. INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs were travelling to France for the period of April 14 to May 5, 2018. Reservations had been made for a Grand Tour of France, plus the airline tickets for a total expense of $7,776.76, that the Defendants claim, plus damages for the anguish and inconveniences suffered for a total claim of $15,000. [ 2 ] At their arrival at the Montreal Airport, the Defendant refused that the Plaintiff Ms.

Perez Pinson board the aircraft, on the flight to Paris, alleging a visa was required. [ 3 ] The Plaintiffs contest the decision adopted by the Defendant on the basis that a visa was not required. [ 4 ] To this end, the Plaintiffs state that Plaintiff Pinzon is a refugee from Venezuela and a permanent resident of Canada and is the holder of a Canadian Travel Document [1] issued under the Convention relating to the Status of Refugees, Geneva, July 28, 1951. [ 5 ] The Plaintiffs’ attorney explained his position to the Defendant and they rely today on this opinion.

He makes the distinction for a holder of a Canadian Travel Document who is in transit or travels for a short-term stay, less than 90 days. He refers to two documents, the Shengen Visa Info and Guide for Tourist Visas in France,

section 4.17. [ 6 ] The Court disregards both documents, which are extracts from private web sites and cannot be relied upon as a legislative source. [ 7 ] As to his reference to the Regulation (EU) 2018/1806 of the European Parliament and of the Council , this Regulation which replaced the previous Regulation that we will examine hereinafter, came into force in November 2018, whereas the Plaintiffs purchased their tickets before April 2018. [ 8 ] As explained at the time to the Plaintiffs and reiterated at Court, the Defendant disagrees with their position, arguing that a Canadian Travel Document is not sufficient to enter France, a visa was required. [ 9 ] The Court agrees with the position adopted by the Defendant, although for different reasons.

The Analysis [ 10 ] France is part of the Schengen Area. The Council Regulation (EC) No 539/2001 of March 15, 2001, [2] determines which persons are required to have a visa or are exempt, depending on the length of their stay. It is important to note that Canada is listed in Annex II. Articles 1 and 7 of the

Preamble and Articles 1, 2 and 3 provide the answer:

(1) Under

Article 62, point (2)(

b) of the Treaty, the Council is to adopt rules relating to visas for intended stays of no more than three months , and in that context it is required to determine the list of those third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement […]

(7) As regards stateless persons and recognized refugees , without prejudice to obligations under international agreements signed by the Member States in particular the European Agreement on the Abolition of Visas for Refugees, signed at Strasbourg on 20 April 1959, the decision as to the visa requirement or exemption should be based on the third country in which these persons reside and which issued their travel documents. However, given the differences in the national legislation applicable to stateless persons and to recognize refugees, Member States may decide whether these categories of persons shall be subject to the visa requirement, where the third country

in which these persons reside and which issued their travel documents is a third country whose nationals are exempt from the visa requirements.

Article 1 Nationals of third countries on the list in Annex I shall be required to be in possession of a visa when crossing the external borders of the Member States .

Article 2 Without prejudice to article 8(2), nationals of third countries on the list in Annex II shall be exempt from the requirement set out in paragraph 1, for stays of no more than three months in all .

Article 3 Without prejudice to obligations under the European Agreement on the Abolition of Visas for Refugees, signed at Strasbourg on 20 April 1959, recognized refugees and stateless persons : - […] - Maybe exempted from the visa requirement if the third country where they reside and which issued their travel documents is one of the third countries listed in Annex II. [My underlines] [ 11 ] As Canada is listed at Annex II, its nationals are not required to have a visa when travelling to a Member State. However the Plaintiff Pinzon is not a national but a refugee. [ 12 ] Therein lies the difference. [ 13 ] Therefore, as provided in

Article 3, France had to legislate to exempt the Plaintive from having a visa. No such legislation was enacted. FOR THESE REASONS THE COURT: DISMISSES Plaintiffs’ recourse; WITH COSTS in the amount of $302, representing the judicial stamp of the Contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q .