Geddes v. Air Canada, 2022 NSSC 49

SUPREME COURT OF Nova Scotia Citation: Geddes v. Air Canada , 2022 NSSC 49 Date: 20220216 Docket: Hfx No. 508004 Registry: Halifax Between: DARRELL JOHN GEDDES APPELLANT v. AIR CANADA RESPONDENT SMALL CLAIMS COURT APPEAL DECISION Judge: The Honourable Justice Kevin Coady Heard: January 31, 2022, in Halifax, Nova Scotia Written Decision: February 16, 2022 Counsel: Dr. Gábor Lukács, Agent for Darrell John Geddes, Appellant Melissa Infusino and Clay Hunter, for the Respondent By the Court: [ 1 ] This is a Small Claims Court appeal of a decision denying Mr.

Geddes compensation for a delayed flight, pursuant to the Air Passenger Protection Regulations (“APPR”). He sought $400.00 following a delay of five hours and two minutes in arriving at his Florida destination on January 31, 2020. [ 2 ] On January 19, 2020, Mr. Geddes purchased a round trip ticket to Orlando, Florida scheduled to depart from Halifax at 07:55 a.m. on January 31, 2020 and arrive in Orlando at 14:52 p.m. that day. The first leg of the itinerary was a flight from Halifax to Boston on Air Canada Flight 8893. Mr. Geddes received boarding passes and proceeded through United States immigration.

At 6:50 a.m. Mr. Geddes was advised that Flight 8893 was cancelled. He was directed to the customer relations department to arrange alternate travel plans. At 7:46 a.m. Air Canada rebooked Mr. Geddes from Halifax to Orlando, via Ottawa and Toronto. He arrived at Orlando at 19:54 p.m. on January 31, 2020, five hours and two minutes later than the arrival time on his initial itinerary. [ 3 ] On February 7, 2020, Mr. Geddes submitted two requests under the APPR seeking compensation for the delay caused by the cancellation of Flight 8893.

Air Canada denied his claim because “the delay was caused by events outside our control”. On February 16, 2020, Mr. Geddes submitted a second request for compensation. Air Canada denied that claim stating the delay was “caused by an event outside our control”. [ 4 ] To understand Air Canada’s explanation for cancelling Flight 8893, and its denial of compensation, it is necessary to focus on the events involving another aircraft (FIN 422). FIN 422 arrived in Halifax on January 30 at 22:45 p.m. It was then grounded due to a defect that had been noted on several occasions in the previous few days.

As a result, it's next flight later than night to Gander, along with its scheduled return in the morning to service Flight 8893 were cancelled. FIN 422 returned to service at 8:22 a.m. on January 31, 2020, after Flight 8893 had been cancelled. It had been out of service for nine hours and 37 minutes.

[ 5 ] On February 20, 2020, Mr. Geddes filed a Notice of Claim in the Small Claims Court of Nova Scotia. A claim hearing was scheduled for April 9, 2020. The Learned Adjudicator denied the claim, and in doing so, offered the following conclusions: 49. I cannot find the repairs were not done properly or that there was anything done by the Defendant that prevented them from being completed sooner. 50. The cancellation of AC8893 resulted from a mechanical malfunction not within the Defendant’s control and the cancellation was necessitated for safety reasons. 51.

Once the flight was cancelled, the Defendant met its obligations under the APPR to rebook the claimant on an alternative flight to get him to his destination as soon as possible. By doing so, it met its obligations under s. 11(2) of the APPR to take all reasonable measures to mitigate the impact of the cancellation. Mr. Geddes essentially advanced two major arguments in the Small Claims Court hearing. He argued that FIN 422’s problems should have been fully repaired in time to meet Flight 8863’s departure from Halifax.

He further argued that Air Canada did not provide him with alternative and timely travel arrangements as required by the APPR. [ 6 ] On July 30, 2020, Mr. Geddes appealed the adjudicator’s decision to this Court. He raised as grounds an error of law and a failure to follow the requirements of natural justice. He advanced the following particulars: 1.

The learned adjudicator erred in law and made inconsistent findings by conflating the three distinct categories of flight cancellations recognized under the Air Passenger Protection Regulations [ APPR ], which are “outside the carrier’s control” (s.10), “within the carrier’s control but is required for safety purposes” (s.11), and “within the carrier’s control but is not referred to in subsections 11(1) or (2)” (s.12). (

a) The learned adjudicator correctly found that aircraft maintenance activities fall within the responsibility of the airline, and “do not fall within the range of events falling outside the carrier's control” under the APPR (Decision at para. 41). (

b) However, the learned adjudicator contradicted himself and referred to a category not recognized under the APPR by finding on the one hand that the cancellation resulted from a mechanical malfunction but on the other hand it was not within Air Canada’s control (Decision at paras. 26 and 50). 2. The learned adjudicator erred in law in interpreting the phrase the "carrier took all reasonable measures to mitigate the impact of the earlier flight […] cancellation" within the meaning of s.11(2) of the APPR . (

a) The learned adjudicator failed to consider whether it would have been possible to rebook Mr. Geddes on a faster itinerary to his destination on flights of other airlines, such as WestJet. (

b) The learned adjudicator erred in law by finding that uncertainty about the time needed for repairs, excuses the airline's failure to arrange for a spare aircraft to be sent to operate the flight (Decision at para. 46). 3. The learned adjudicator erred in law about the burden of proof. (

a) The learned adjudicator correctly found that the burden of proof about the reasons for and circumstances surrounding a flight cancellation is on the airline (Decision at para. 44). (

b) However, the learned adjudicator contradicted himself and erred in law by placing on Mr. Geddes the onus to show that Air Canada failed to take all reasonable measures to prevent the cancellation, and in particular, it failed to carry out the repair in a business- like manner (Decision at para. 48). 4. The learned adjudicator erred in law and/or failed to follow the requirements of natural justice by assuring the parties that only

evidence and documents introduced by way of witnesses would be considered, and then making findings of fact in the absence of suchsupporting evidence on: (

a) the purported intent of the message “REROUTE CONTROLLABLE” on the meal voucher provided to Mr. Geddes (Decision atpara. 16); and (

b) whether the alternative flights on which Air Canada rebooked Mr. Geddes provided the fastest possible alternative itinerary(Decision at para. 51). 5. The learned adjudicator erred in law by failing to adjudicate the claim asserted at paragraph 27(

a) of the Details of Claim that AirCanada breached the contract of carriage with Mr. Geddes by failing to provide Mr. Geddes with the information set out in

section 13 ofthe APPR. The parties acknowledge that the standard of review is correctness. [7] In Brett Motors Leasing Ltd. v. Welsford, (NSSC), Justice Saunders discussed “error of law”: One should bear in mind that the jurisdiction of this Court is confined to questions of law which must rest upon findings of fact as foundby the adjudicator. I do not have the authority to go outside the facts as found by the adjudicator and determine from the evidence myown findings of fact. “Error of law” is not defined but precedent offers useful guidance as to where a superior court will intervene toredress reversible error.

Examples would include where a statute has been misinterpreted; or when a party has been denied the benefit ofstatutory provisions under legislation pertaining to the case; or where there has been a clear error on the part of the adjudicator in theinterpretation of documents or other evidence; or where the adjudicator has failed to appreciate a valid legal defence; or where there is noevidence to support the conclusions reached; or where the adjudicator has clearly misapplied the evidence in material respects therebyproducing an unjust result; or where the adjudicator has failed to apply the appropriate legal principles to the proven facts.

In suchinstances this Court has intervened either to overturn the decision or to impose some other remedy, such as remitting the case for furtherconsideration. A high level of deference must be afforded to the adjudicator’s findings of fact and alleged errors of law must be clear and overriding. Clear relates to the obvious. An overriding error of law is one that changes the very outcome of the case. Such an error is referred to as“palpable and overriding”. [8] In MacPhee v.

Gwynne-Timothy, 2005 NSCA 80, the Court discussed palpable and overriding error at paragraph 31: [31] A trial judge’s findings of fact are not to be disturbed unless it can be shown that they are the result of some palpable andoverriding error. The standard of review applicable to inferences drawn from fact is no less and no different than the standard applied tothe trial judge’s findings of fact. Again, such inferences are immutable unless shown to be the result of palpable and overriding error.

Ifthere is no such error in establishing the facts upon which the trial judge relies in drawing the inference, then it is only when palpable andoverriding error can be shown in the inference drawing process itself that an appellate court is entitled to intervene. Thus, we are toapply the same standard of review in assessing Justice Richard’s findings of fact, and the inferences he drew from those facts. [32] An error is said to be palpable if it is clear or obvious.

An error is overriding if, in the context of the whole case, it is soserious as to be determinative when assessing the balance of probabilities with respect to that particular factual issue. Thus, invoking the“palpable and overriding error” standard recognizes that a high degree of deference is paid on appeal to findings of fact at trial. See, forexample, Housen, supra, at ¶ 1-5 and Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010 at ¶ 78 and 80. Not every misapprehension of the evidence or every error of fact by the trial judge will justify appellate intervention.

The error must notonly be plainly seen, but “overriding and determinative.” [33] On questions of law the trial judge must be right. The standard of review is one of correctness. There may be questions ofmixed fact and law. Matters of mixed fact and law are said to fall along a “spectrum of particularity.” Such matters typically involveapplying a legal standard to a set of facts. Mixed questions of fact and law should be reviewed according to the palpable and overridingerror standard unless the alleged error can be traced to an error of law which may be isolated from the mixed question of law and fact.

Where that result obtains, the extricated legal principle will attract a correctness standard. Where, on the other hand, the legal principlein issue is not readily extricable, then the issue of mixed law and fact is reviewable on the standard of palpable and overriding error. The evidence before the Learned Adjudicator was complex and voluminous. He provided an overview of the APPR at paragraph 2 ofhis July 5, 2021, decision: When consumer protection is the intended outcome of a regulatory regime, it should be assumed the regime will be in plain language,easy to understand and supports a simple claims process.

The APPR, which was intended to accomplish enhanced passenger rights,

accomplished none of these. The language is complex and legalistic; one needs detailed or specific knowledge to invoke the claims system; and the process to seek compensation, once invoked, does not lend itself to quick resolution. This case illustrates that complexity, as lengthy pre-hearing processes involved the issuance of subpoenas to obtain detailed records from the Defendant about aircraft fleet information, maintenance records and other matters to support the Claim.

Air Canada called two witnesses who possessed special knowledge in reading, understanding, and explaining maintenance reports and recovery efforts. It should be noted that there is no record of their Small Claims Court testimony. [ 9 ] The lack of a record places this court in a limited role when inquiring into the reasons of an adjudicator. In order for reasons to be accepted, they must demonstrate the evidentiary foundation of the findings. This conclusion is supported by s.34(2) of the Small Claims Court Act , R.S., c. 430, which requires the adjudicator to submit to the reviewing court a

summary of his/her findings of fact and law. Accordingly, an adjudicator has a duty to submit not only the decision, but also the basis of any findings raised in the Notice of Appeal. In this case, the Learned Adjudicator authored an 11-page decision followed by a four-page

summary report. I find that these documents clearly state the basis for his findings of fact and his ultimate conclusions. Fact finding in Small Claims Court is only to be disturbed when it appears from the

summary report and decision that there was no evidence to support a conclusion ( Maloney v. Hoyeck , 2013 NSSC 266 ). [ 10 ] The Learned Adjudicator discussed what Mr. Geddes had to establish in order to succeed at the initial Small Claims Court hearing at paragraph 42 of his decision: 42. For the Claimant to succeed, the Court must find the maintenance on FIN 422, that removed it from service on January 30 and 31, was within Air Canada's control and not required for safety reasons.

The party’s agree this requires an assessment of the knock-on- effect, as the repairs involved the cancellation of flights scheduled before AC 8893. If the repairs were discretionary or part of scheduled maintenance, Air Canada would not be justified in cancelling AC8893 and under the APPR compensation would be due. Given the adjudicator’s decision, the evidence failed to establish those benchmarks. [ 11 ] The Learned Adjudicator made three findings of fact. One, he found that the repairs to FIN 422 were done promptly and could not be completed sooner.

Two, the cancellation of Flight 8893 resulted from a mechanical malfunction not in Air Canada's control and was necessitated for safety reasons. Three, that Air Canada met its obligation under the APPR to mitigate the impact of the cancellation of Flight 8893. There was ample evidence supporting those findings and, as such, they require deference. Consequently, this appeal is dismissed. [ 12 ] Should the parties not be able to agree on costs, I will accept written submissions 20 days after the release of this decision. Coady, J.