Decision No. 1-C-A-2018

SUMMARY

[1] Shahid Saleem filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the delay in the delivery of, and the loss of items from his checked baggage while travelling for work on May 2, 2017 from Edmonton, Alberta to Fort St. John, British Columbia, via Vancouver, British Columbia.

[2] Mr. Saleem is seeking compensation in the amount of CAN$1,095.97: CAN$667.01 for a second flight to Fort St. John, CAN$225 for travel to the airport to pick up his baggage, and CAN$203.96 for the items lost from his baggage.

[3] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in Rule 230(A)(1) of its Domestic Passenger Rules and Fares Tariff, CTA(A) No. 3 (Tariff), with regard to liability of carriers respecting baggage, as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)? If Air Canada did not properly apply its Tariff, what remedy, if any, is available to Mr. Saleem?

[4] For the reasons set out below, the Agency finds that Air Canada properly applied the terms and conditions of its Tariff. The Agency orders Air Canada to compensate Mr. Saleem for his lost items in the amount of CAN $203.96. Air Canada is to pay this amount to Mr. Saleem as soon as possible and no later than February 9, 2018. The Agency dismisses the remainder of the application.

BACKGROUND

[5] Mr. Saleem travelled for work from Edmonton to Fort St. John on May 2, 2017, arriving at 9:45 a.m. and departing on the same day at 7:05 p.m. When he arrived at the Fort St. John Airport (airport), one piece of his baggage, a tool bag, did not arrive.

[6] When Mr. Saleem arrived at the airport later that evening and retrieved his baggage, there were items missing from it. Mr. Saleem then filed a Baggage Declaration Form with Air Canada, listing the missing items and the cost of each.

PRELIMINARY MATTERS

Customer service issues and discriminatory remarks

[7] Mr. Saleem claims that, while he was at the airport reporting to an Air Canada agent that his baggage had not arrived, another Air Canada agent would look at him and laugh, and that this occurred three or four times. Mr. Saleem further claims that he was the subject of discriminatory remarks. Mr. Saleem requests that both the poor service from, and the discriminatory remarks made by the Air Canada agents be investigated by the Agency.

[8] Air Canada argues that Mr. Saleem did not provide details on the discriminatory nature of the remarks, nor did he seek a remedy related to this issue. Air Canada requests that the Agency dismiss this part of the application.

[9] The Agency does not have jurisdiction to address customer service issues or to investigate discriminatory remarks not related to disability. The Agency therefore will not address these matters.

Mr. Saleem’s request to file documents

[10] On September 22, 2017, the pleadings closed on Mr. Saleem’s application; however, on November 1, 2017, Mr. Saleem filed a request pursuant to section 34 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules) to put on the record e-mails that he had sent to the Agency on September 25 and October 4, 2017 (e-mails). The Agency finds that the e-mails are neither relevant nor necessary to the matter as they do not advance the proceedings or assist the Agency in making its final decision. Therefore, the Agency denies Mr. Saleem’s request.

THE LAW

[11] Subsection 67(3) of the CTA requires that a carrier holding a domestic license apply the terms and conditions of carriage set out in its tariff.

[12] If the Agency finds that an air carrier has failed to properly apply its tariff, section 67.1 of the CTA empowers the Agency to direct the carrier to:

1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
2. compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and
3. take any other appropriate corrective measures.

[13] Tariff Rule 230(A)(1) outlines Air Canada’s liability related to baggage, and states:

(Applicable for transportation solely within Canada only and not in conjunction with any international travel.) Liability for the loss of, damage to, or the delay in delivery of, baggage or other personal property shall not be more than $1,500 per passenger unless a higher value is declared in advance and charges are paid pursuant to Carriers regulations as defined in paragraph (C). In such a case, the liability of the Carrier shall be limited to such higher declared value. In no case shall the Carriers liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss. These limitations shall also apply to baggage or other personal property (as previously defined in Rule 195) accepted by the Carrier for temporary storage at a city or airport office or elsewhere before or after the passengers trip.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

Mr. Saleem’s position

[14] Mr. Saleem states that upon arriving at the airport, his bag did not arrive and that an Air Canada agent advised him to return later that evening to claim it. Mr. Saleem submits that when he returned to the airport to pick up his baggage, it was unlocked, wide open and items were missing from it.

[15] Mr. Saleem claims that, as he did not have his tools, he was not able to complete his work that day and he therefore booked another return flight to complete the work for May 9, 2017 (May 9 flight), arriving at 9:55 a.m. and departing the same day at 7:05 p.m. Further, Mr. Saleem submits that he left his baggage in storage at the airport.

[16] Mr. Saleem is seeking compensation in the amount of CAN$1,095.97: CAN$667.01 for the May 9 flight, CAN$225 for travel to the airport on May 2 to pick up his baggage and CAN$203.96 for the missing items from his baggage, specifically:

• CAN$19.99 for a bag lock;
• CAN$34.99 for a cordless screwdriver;
• CAN$108.99 for a mini ratchet set; and,
• CAN$39.99 for an 8" cutter.

Air Canada’s position

[17] Air Canada states that on May 4, 2017, Mr. Saleem signed a written form indicating that he was claiming CAN$203.96 for the lost items from his baggage. Air Canada further states that it provided to Mr. Saleem a payment in the amount of CAN$203.96 for the lost items; however, he declined it.

[18] Air Canada reiterates its offer to compensate Mr. Saleem for the items lost from his baggage.

[19] Air Canada submits that, with respect to the additional claim made by Mr. Saleem for the cost of the May 9 flight, Mr. Saleem has not established a causal link between the baggage delay and the second trip. Air Canada argues that Mr. Saleem did not establish that the baggage delay prevented him from completing his work and therefore required him to return to Fort St. John the following week. Air Canada contends that it is plausible that not having tools may prevent the performance of work; however, Mr. Saleem did not provide any details or evidence as to how the absence of his tools was essential to preventing him from completing the work.

[20] Air Canada further argues that nevertheless, it is not clear as to who paid for the May 9 flight, as the Maritime Travel Itinerary filed by Mr. Saleem suggests that the trip may have been paid for by Ledcor and therefore, Mr. Saleem did not incur any additional expenses.

Finding of fact

[21] It is undisputed that there were items missing from Mr. Saleem’s baggage, that the missing items are worth CAN$203.96 and that Air Canada, under Rule 230(A)(1) of its Tariff, is liable for the missing items. This is consistent with Air Canada providing Mr. Saleem with a payment in that amount and reiterating its offer of that amount.

[22] It is also undisputed by the parties that Mr. Saleem was travelling for work, that his baggage was delayed and that Air Canada, under Rule 230(A)(1) of its Tariff, is liable for any loss suffered by Mr. Saleem as a result of the delay.

[23] Mr. Saleem travelled for work to Fort St. John for a day trip, arriving at 9:45 a.m. and departing at 7:05 p.m., he did not receive his baggage until after 5:00 p.m., and he put his baggage in storage at the airport. In addition, on May 2, 2017, a second one-day trip from Edmonton to Fort St. John was booked for Mr. Saleem for May 9, 2017. The Agency finds that it is unlikely that if Mr. Saleem was required to perform two days of work either consecutively or separately, that either his original itinerary would not have been scheduled for two days or that, when the first trip was scheduled, the second trip would not have been arranged at the same time. The Agency therefore finds that Mr. Saleem was required to make a second trip because he was not able to complete the work on May 2, 2017 as a result of his tool bag being delayed for the duration of his trip.

[24] Mr. Saleem’s May 9, 2017 flight was booked through Maritime Travel; however, the Agency notes that on the Maritime Travel Itinerary, it identifies LEDCOR and its mailing address below Mr. Saleem’s name on page 1, and that the following statement can be found at the top of page 2:

Please note: Ledcor Group of Companies authorizes its employees to decline Loss Damage Waiver and Additional Liability Insurance protection. For additional information regarding this waiver, please contact Ledcor Risk Management.

[25] Furthermore, although Air Canada raised the issue of who paid for the May 9, 2017 flight in its answer to the application, Mr. Saleem did not address it in his reply. The Agency therefore finds that Mr. Saleem has not established that he paid for the May 9, 2017 flight.

[26] With respect to the CAN$225 that Mr. Saleem is seeking for travel to the airport to pick up his baggage on May 2, 2017, the Agency finds that Mr. Saleem has not established that he incurred this expense as a result of the baggage delay. Mr. Saleem submits that he went to the airport at 5:00 p.m. to pick up his baggage; however, he was scheduled to depart at 7:05 p.m. and therefore would have nonetheless had to travel to the airport that evening for his flight.

ANALYSIS AND DETERMINATIONS

[27] In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to prove, on a balance of probabilities, that the carrier has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[28] In Decision No. 308-C-A-2010, the Agency stated that to prove a fact, a party must present the best evidence available in light of the nature and circumstances of the case.

[29] As the Agency has found that, although Mr. Saleem was required to return to Fort St. John on May 9, 2017 as a result of the baggage delay, he did not establish that he paid for the May 9, 2017 flight, that is, he did not establish that it was an “actual loss suffered by the passenger.” The Agency therefore finds that Air Canada is not liable for the cost of the May 9, 2017 flight, CAN$667.01, and accordingly, it properly applied Rule 230(A)(1) of its Tariff.

[30] The Agency finds that, as Mr. Saleem did not incur the cost to travel to the airport on May 2, 2017 as a result of the baggage delay, Air Canada is not liable, and accordingly, it properly applied Rule 230(A)(1) of its Tariff.

[31] To comply with Rule 230(A)(1) of its Tariff, Air Canada must compensate Mr. Saleem in the amount representing the actual loss of the missing items. The Agency notes that Air Canada provided Mr. Saleem with a payment for the lost items but this payment was declined. The Agency also notes that Air Canada reiterates its offer to compensate Mr. Saleem for the value of the lost items claimed consistent with Rule 230(A)(1) of its Tariff.

CONCLUSION

[32] The Agency orders Air Canada to compensate Mr. Saleem in the amount of CAN$203.96. Air Canada is to pay this amount as soon as possible and no later than February 9, 2018. The Agency dismisses the remainder of the application.