2018 QCCQ 28, 2018 QCCQ 28

Ullah c. Turkish Airlines Inc. 2018 QCCQ 28 COURT OF QUÉBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152826-162 DATE: January 11, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ QUAYM ULLAH Plaintiff v. TURKISH AIRLINES INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $7,000 from Turkish Airlines Inc. (“ Turkish Airlines ”) for breach of a contract of carriage by air. He argues that Turkish Airlines is obliged to refund the fare of three round-trip plane tickets cancelled prior to departure.

In addition to the refund ($3,860), he seeks damages for stress, anxiety and inconvenience ($3,140). [ 2 ] Turkish Airlines denies any liability towards Plaintiff on the basis that the tickets were non-refundable if cancelled. FACTUAL CONTEXT [1] On January 27, 2016, Plaintiff purchased five round-trip plane tickets from Montréal to Islamabad, Pakistan for his wife, three of his children and his granddaughter.

He purchased the tickets through Voyages Buner International inc. (“ Buner ”), a travel agency, for a total price of $3,630. [1] His family was to depart on March 27, 2016 and return on May 10, 2016. [2] The electronic tickets remitted to Plaintiff contain the following statement: “[…] IMPORTANT NOTICE - PLEASE READ CAREFULLY […] ENTRY VISA VARY FROM ONE COUNTRY TO THE NEXT. IT IS YOUR RESPONSIBILITY TO COMPLY WITH TRAVEL REGULATIONS. WE WILL BE HAPPY TO PROVIDE THE NECESSARY DETAILS YOU NEED FOR YOUR TRIP. TICKETS ARE NON REFUNDABLE OR TRANSFERABLE. ALL TICKETS HAVE PENALTIES FOR CHANGES AFTER ISSUANCE.

IN ADDITION TO THE AIRLINE OR/AND SUPPLIER PENALTIES ADMIN FEE OF CAD150.00 WILL BE CHARGED TO ANY REFUND. PLEASE CHECK YOUR AIRLINE WEBSITE FOR MORE DETAILS. […]” [2] [Emphasis added] [ 3 ] Soon after purchasing the tickets, Plaintiff filed an application with the Canadian authorities to obtain visas to enter Pakistan.

When it became evident that the visas could not be obtained in time, Plaintiff contacted Buner to modify the travel arrangements. [ 4 ] Around March 25, 2016, the departure date was postponed to April 24, 2016, in consideration of which Plaintiff was charged an additional amount of $3 340. [3] Plaintiff and his son, Mr.

Anwar Shamin, claim that a representative of Buner told them at this time that the additional charge had brought the tickets into a different fare category so that they were now refundable in case of cancellation prior to departure. [ 5 ] Modified electronic tickets were remitted to Plaintiff, however, which contain the same statement as the original ones reproduced above. [4] [ 6 ] Sometime prior to the departure date of April 24, 2016, Plaintiff asked Buner to cancel three of the five plane tickets because of further difficulties in obtaining the required visas. Two of the passengers (Plaintiff’s son, Mr.

Anwar Shamin, and his daughter, Ms. Sahera Bibi) used their tickets and travelled to Pakistan as planned. [ 7 ] After the other three tickets were cancelled, Plaintiff requested a refund directly from Turkish Airlines, as instructed by Buner. [5] Turkish Airlines refused on the basis that the tickets were non-refundable. [6] Plaintiff filed his claim against Turkish Airlines on June 14, 2016. Questions in issue [ 8 ] The case raises the following questions, namely:

a) Was Turkish Airlines obliged to refund the price of the cancelled tickets?

b) If so, is Plaintiff entitled to the amounts claimed? ANALYSIS

a) Was Turkish Airlines obliged to refund the price of the cancelled tickets? [ 9 ] Plaintiff’s claim, which is directed against the air carrier only, is based on the contract of carriage by air entered into with Turkish Airlines via Buner (the “ Contract ”). [ 10 ] To succeed in his claim, Plaintiff must prove, on a balance of probabilities, [7] that the Contract obliged Turkish Airlines to refund the price of the tickets if they were cancelled prior to departure. [ 11 ] Plaintiff has not proven the existence of such an obligation on the part of Turkish Airlines. [ 12 ] On the contrary, both the original and the modified electronic tickets remitted to Plaintiff, which he himself adduced into evidence, state the opposite : “[…] IMPORTANT NOTICE - PLEASE READ CAREFULLY […] ENTRY VISA VARY FROM ONE COUNTRY TO THE NEXT.

IT IS YOUR RESPONSIBILITY TO COMPLY WITH TRAVEL REGULATIONS. WE WILL BE HAPPY TO PROVIDE THE NECESSARY DETAILS YOU NEED FOR YOUR TRIP. TICKETS ARE NON REFUNDABLE OR TRANSFERABLE. ALL TICKETS HAVE PENALTIES FOR CHANGES AFTER ISSUANCE. IN ADDITION TO THE AIRLINE OR/AND SUPPLIER PENALTIES ADMIN FEE OF CAD150.00 WILL BE CHARGED TO ANY REFUND.

PLEASE CHECK YOUR AIRLINE WEBSITE FOR MORE DETAILS. […]” [8] [Emphasis added] [ 13 ] These terms are clear: the tickets may be changed after issuance (subject to certain penalties and administration fees), but they are not refundable. [ 14 ] Although Plaintiff and his son testified that they were told by Buner’s representative that the modified tickets were refundable in case of cancellation, their testimony in this regard is not admissible evidence.

Indeed, their testimony serves to contradict the terms of the written Contract and as such, it is inadmissible unless there is a commencement of proof, which is absent here. [9] Moreover, their testimony in this regard is inadmissible because it constitutes hearsay evidence upon which the Court cannot rely. [ 15 ] In any event, the alleged statements of Buner’s representative, if validly proven, could only serve to establish liability on the part of Buner, who is not a defendant in the claim before the Court. [ 16 ] Given that Plaintiff has not established that Turkish Airlines had an obligation to refund cancelled tickets, his action must be dismissed.

b) If so, is Plaintiff entitled to the amounts claimed? [ 17 ] Given the Court’s conclusion on the first question in issue, it is not necessary to consider the second question. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH LEGAL COSTS of $150 representing the judicial fees on the Contestation. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: December 5th, 2017