Decision No. 10-C-A-2022

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against the respondents regarding excess baggage fees, damage to his baggage and missing items from his baggage, while travelling from Ottawa, Ontario, to Moscow, Russia, via Toronto, Ontario, and London, United Kingdom. The applicant seeks compensation in the amount of CAD 4,539.30 for these fees, damage and missing items.

[2] The Agency will consider the following issue:

Did the respondents properly apply the terms and conditions set out in Air Canada’s International Passenger Rules and Fares Tariff No. AC2 containing Local Rules, Fares & Charges on behalf of Air Canada Applicable to the Transportation of Passengers and Baggage between points in Canada/USA and points in Areas 1/2/3 and between the USA and Canada, No. 458 (Air Canada’s Tariff), and International Passenger Rules and Fares Tariff No. IPG-1 Containing Local and Joint Rules, Fares and Charges Applicable to the Transportation of Passengers and Baggage Between Points in the United States and Points in Areas 2/3 and Containing General Rules Applicable to the Transportation of Passengers and Baggage Between Points in Canada and Points in Areas 2/3, NTA(A) No. 324 (Aeroflot’s Tariff) relating to excess baggage fees, damaged baggage and missing baggage items, as required by subsection 110(4) of the ATR?

[3] For the reasons set out below, the Agency finds that Air Canada properly applied Rules 60(A)(1)(d) and 60(A)(2)(b) of its Tariff in regard to baggage fees. The Agency finds that both respondents correctly applied Article 31 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) as incorporated in Rule 5(A)(2) of Air Canada’s Tariff and in Rule 55(B)(4) in Aeroflot’s Tariff in regard to damaged baggage and the missing items. The Agency, therefore, dismisses the application.

BACKGROUND

[4] The applicant purchased round-trip tickets for travel from Ottawa to Moscow via Toronto and London departing November 16, 2020, and returning February 14, 2021. On both the outbound and inbound flights, the Ottawa-to-Toronto and Toronto‑to‑London segments were operated by Air Canada, and the London-to-Moscow and Moscow-to-London segments ) were operated by Aeroflot.

[5] The applicant claims that on his outbound flight from Ottawa to Toronto, he checked three pieces of baggage with Air Canada, and was incorrectly charged extra fees for this baggage. The applicant also claims that his checked baggage lock was broken off, and that items in his baggage were either broken or stolen.

[6] Before the opening of pleadings, the Agency noted a discrepancy in the applicant’s itinerary and the claim that he filed a report with the Québec City police. The itinerary filed by the applicant did not have a layover in Québec, Quebec; therefore, it was unclear why the applicant had reported the theft to the Québec City police. The applicant then clarified his position by stating that he had made a mistake and provided an itinerary for a different flight, which showed a flight departing from Ottawa on November 17, 2020, with a connection via Montréal, Quebec, and not Toronto. The applicant explained that his flight was rescheduled several times because of the pandemic and that he had originally sent the wrong itinerary.

[7] The applicant then contacted the Agency to state that the newly provided itinerary was incorrect, that he did not travel via Montréal, and that he did not file a report with the Québec City police. The applicant states that he had confused this flight with another flight to Québec, which he had taken for work. The Agency notes that the itinerary provided by the applicant was to Moscow and not to Québec. The applicant also changed his monetary claim to CAD 4,319.48.

[8] In his email to the Agency, the applicant also made it clear that he did not fill out a Property Irregularity Report (PIR).

THE LAW AND RELEVANT TARIFF PROVISIONS

[9] Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[10] If the Agency finds that an air carrier has failed to properly apply its tariff, subsection 113.1(1) of the ATR empowers the Agency to direct the carrier to

(a) take the corrective measures that the Agency considers appropriate; and

(b) pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and
     conditions that are applicable to the service it offers and that were set out in the tariff.

[11] The Montreal Convention states the following:

Article 31 — Timely Notice of Complaints

(1) Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4.

(2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

(3) Every complaint must be made in writing and given or dispatched within the times aforesaid.

(4) If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part.

[12] The relevant provisions of the Tariffs are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicant

[13] The applicant argues that when he checked his baggage in Ottawa, he was overcharged by Air Canada. He claims that his baggage was oversized, but that he was charged for its being overweight.

[14] He further claims that he had a 14-karat yellow gold bracelet in his checked baggage, which was stolen when one of the locks was broken. The applicant states in his formal application that he reported the theft to the Québec City police. Regarding the claim the applicant made with Air Canada, he states that “the individual that denied my claim approved another claim I submitted 2 minutes later.”

[15] The applicant also submits that he had a vacuum cleaner in his oversized baggage that arrived broken and that his baggage was damaged.

[16] The applicant states that under the Warsaw Convention he is owed CAD 4,539.30 for all his damages, which includes the cost of the missing bracelet, CAD 423.52 for his baggage and CAD 180.78 for the broken vacuum. The applicant also seeks a refund of his baggage fees. To substantiate the claim, the applicant provided the purchase receipt for a vacuum cleaner and for the bracelet.

The respondents

AIR CANADA

[17] In its answer, Air Canada confirmed that the itinerary connecting in Toronto is the correct itinerary for this application.

Excess Baggage Fees

[18] Air Canada states that the applicant checked three pieces of baggage in Ottawa for which he was respectively charged CAD 70, CAD 100 and CAD 225, and provided a copy of the Passenger Name Record (PNR) and a 360 System report to substantiate its argument. Air Canada states that the applicant contacted its customer support services on the day of his departure and claimed that he was overcharged for his baggage.

[19] Air Canada submits that Rule 60(A)(1)(d) of Air Canada’s Tariff lists the regular baggage allowance for passengers. It indicates that for travel on a Basic fare between Canada and Europe, the first checked piece of baggage costs CAD 70 and the second piece costs CAD 100. Air Canada points out that the third piece was considered excess baggage. Rule 60(A)(2)(b) indicates that for travel between Canada and Europe, a fee of CAD 225 must be paid for any additional baggage. Air Canada argues that it correctly applied its Tariff when it charged the applicant CAD 70, CAD 100 and CAD 225 for his three pieces of checked baggage.

Baggage damage and alleged theft

[20] Air Canada states that upon his arrival in Moscow, the applicant contacted its customer support services to claim that two pieces of baggage were damaged; however Air Canada points out that no claim was made regarding any items missing from his baggage.

[21] Air Canada states that its Baggage Department contacted the applicant and asked him to provide proof of the damage, and that the applicant provided a photograph of a damaged bag but no photo of any other damage. After receiving this photograph, Air Canada asked the applicant to take his baggage to a repair shop and to either provide an estimate of the repairs or a confirmation from the repair shop that the baggage could not be repaired. According to Air Canada, the applicant simply replied that repair shops do not exist in Russia; he did not provide any further proof of damaged baggage.

[22] Air Canada states that no claim was made to Air Canada regarding the alleged theft within seven days of the applicant receiving his baggage. Air Canada points out that the alleged theft was brought up by the applicant only when he filed his claim with the Agency and that, therefore, this claim is time-barred.

[23] Air Canada points out that given the nature of the alleged damages, evidence has to be provided and cannot be limited to general allegations. Air Canada states that the applicant must establish and prove the damages he claims to have suffered, and argues that the applicant has not done so. Air Canada also argues that as the alleged damage was not proven, no compensation was provided, nor were the baggage fees refunded.

[24] Air Canada also clarifies the applicant’s claim regarding “another approved claim” as mentioned in his application. Air Canada explains that it refunded the applicant CAD 100 for an earlier damaged baggage claim that does not relate to this current complaint nor to this itinerary.

Credibility of the applicant

[25] Air Canada submits that the application is unclear as it does not indicate any travel dates, and as the documentation contains conflicting information with regard to the itineraries, the alleged damage and the value of the damage. It also points out that it does not make sense that a police report was filed in Québec for the alleged theft as there was no stopover in Québec. Air Canada further argues that it is highly unlikely that a person would not remember on which itinerary an item allegedly worth over CAD 3,000 went missing.

[26] Air Canada also points out that, when filing his claim with Air Canada, the applicant mentioned that he had never filed a baggage claim with Air Canada nor any other carrier. However, Air Canada states that after an investigation, this was found to be untrue. It explains that the applicant filed a complaint with Air Canada following a trip in 2019 for an alleged stolen diamond ring and that the applicant later informed Air Canada that he had found the ring. The applicant also filed a claim with Air Canada for a missing 14-karat gold necklace in February 2020. Air Canada provided submissions of emails as evidence to substantiate this claim.

[27] Air Canada provided evidence from Swiss International Air Lines Ltd. (Swiss Air) that the applicant had filed a similar claim for a stolen 14-karat gold necklace and damaged baggage.

[28] Air Canada argues that the information provided by the applicant does not appear credible and that, therefore, the Agency cannot rely on it as proof of damages. Considering these misrepresentations, Air Canada submits that it is in its rights to disallow the claim as per Rule 105(B)(14) of its Tariff, and further submits that the application should be dismissed as the claims made are both unfounded and factually unproven. Air Canada argues that the Agency must ensure that passengers are compensated when required, but it must also ensure that there is no abuse.

AEROFLOT

[29] In its answer, Aeroflot submits that a PIR must be filed at the airport of destination immediately upon detection of circumstances. Aeroflot argues that since the report of damage was not filed upon receipt of the baggage, it is not possible to establish that this incident occurred during the period when it was under the responsibility of the carrier.

[30] Aeroflot submits that as a complaint was filed with the Québec City police, a territorial jurisdiction not reflected in the route, it is excluded from any responsibility.

ANALYSIS AND DETERMINATIONS

[31] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

Excess Baggage Fees

[32] Rule 60(A)(2)(b) of Air Canada’s tariff sets out that baggage fees are CAD 70 for the first piece of baggage, CAD 100 for the second piece of baggage and CAD 225 for the third piece of baggage. Therefore, the Agency finds that Air Canada correctly applied Rule 60(A)(2)(b) when it collected these fees for the applicant’s three pieces of checked baggage.

Baggage damage and missing items

[33] The applicant claims that his baggage was damaged, that his lock was cut off, that a vacuum cleaner inside his baggage was damaged, and that a 14-karat gold bracelet was stolen from his baggage. Aeroflot asserts that because the applicant did not file a PIR at the airport for the damage to his baggage, the applicant is not entitled to any compensation. However, Article 31 of the Montreal Convention provides that a person has up to seven days after receiving their baggage to file a claim with the carrier. Nor does the Montreal Convention require that the PIR be filed at the airport.

[34] The Agency finds that the applicant did not contact Aeroflot within the seven-day period and that, therefore, his claim is time-barred. Accordingly, the Agency finds that Aeroflot properly applied Rule 55(B)(4) of its Tariff.

[35] The applicant did file a claim with Air Canada for his damaged baggage within the seven days required by the Montreal Convention. However, given that the applicant did not respond to Air Canada’s request for an estimate or a confirmation that the baggage could not be repaired, it is reasonable that Air Canada did not provide compensation. Accordingly, the Agency finds that Air Canada properly applied Rule 5(A)(2) of its Tariff.

[36] When issues of credibility arise, as in this case, the Agency must determine which version of events is more probable. As the applicant bears the legal burden of proof, he must convince the Agency, on a balance of probabilities, that his version is more probable than that of the carrier. The applicant must prove his case by a preponderance of credible evidence.

[37] Air Canada points out that the inconsistencies in the applicant’s story, the applicant’s change of itinerary, and the applicant’s uncertainty as to which itinerary applied when he lost a very valuable item, all demonstrate a lack of credibility. Air Canada argues that there is no logical connection between filing a claim with the Québec City police for a flight that did not transit via Québec. The Agency agrees that it is unusual for an applicant to forget which itinerary applies to a trip where they allegedly lost an expensive piece of jewellery.

[38] The Agency notes that the applicant later retracted his statement about contacting the Québec City police regarding this loss. Filing a police report, which is a very serious undertaking, and forgetting the details of whether a report was filed, or whether it was for this case or another case, are pieces of crucial evidence for the applicant to remember. The Agency finds its unusual that the applicant could not recall which itinerary he travelled upon or whether he filed a police report and, therefore, agrees with Air Canada that the applicant’s credibility is in question.

[39] Air Canada points out that the applicant has made multiple damage claims in the past. Air Canada provided an email from Swiss Air that detailed the applicant’s complaint against Swiss Air dated February 15, 2020: “A 14k gold necklace is missing from my luggage. The suitcase is also damaged. Lock cut from zippers. This is my receipt for my necklace….Please find my necklace or provide compensation quickly”. The Agency finds that the applicant’s claims against Swiss Air and those he is now making against Air Canada are similar: an expensive piece of jewellery missing from damaged baggage where the lock was broken. The Agency finds the applicant’s claims that the same incident occurred with two different air carriers in the same year is improbable. The Agency finds that, on a balance of probabilities, the applicant’s version of events is not credible.

CONCLUSION

[40]The Agency finds that Air Canada correctly applied Rules 60(A)(1)(d) and 60(A)(2)(b) of its Tariff in regard to baggage costs. The Agency finds that both respondents correctly applied Article 31 of the Montreal Convention, as incorporated into their respective Tariffs. Accordingly, the Agency finds that Air Canada correctly applied Rule 5(A)(2) of its Tariff and that Aeroflot correctly applied Rule 55(B)(4) of its Tariff. The Agency, therefore, dismisses the application.
 

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APPENDIX TO DECISION NO. 10-C-A-2022

International Passenger Rules and Fares Tariff No. AC2 containing Local Rules, Fares & Charges on behalf of Air Canada Applicable to the Transportation of Passengers and Baggage between points in Canada/USA and points in Areas 1/2/3 and between the USA and Canada, No. 458 (Air Canada’s Tariff)

Rule 5 - Application of Tariff

(A)  General

….

(2) International transportation shall be subject to the rules relating to liability established by, and to all other provisions of the convention for the unification of certain rules relating to international transportation by air, signed at Warsaw, October 12, 1929, or the convention for the unification of certain rules international carriage by air (Montreal convention of 1999) or such convention as amended, whichever may be applicable to the transportation hereunder. Any provision of these rules which is inconsistent with any provision of said convention shall, to that extent, but only to that extent, be inapplicable to international transportation.

….

Rule 60 - Baggage

(A)   General Acceptance of Checked Baggage

(1) Regular Baggage Allowance

(a) General

The passenger is entitled to carry checked baggage as specified in this section and subject to the terms and conditions set out in this rule, in particular but not limited to those set out in the sections pertaining to prohibited and unacceptable items, special items, and sporting equipment.

….

(D) Regular baggage allowance

(2) Excess Baggage

Baggage in excess of the regular baggage allowance set out in (a)(1) above, in number, dimension or weight, will be accepted subject to the conditions set out below, upon payment of applicable fees.

(b) Applicable Fees

International Passenger Rules and Fares Tariff No. IPG-1 Containing Local and Joint Rules, Fares and Charges Applicable to the Transportation of Passengers and Baggage Between Points in the United States and Points in Areas 2/3 and Containing General Rules Applicable to the Transportation of Passengers and Baggage Between Points in Canada and Points in Areas 2/3, No. 324 (Aeroflot’s Tariff)

Rule 55 Liability of Carriers

….

(B) Laws and provisions applicable

….

(4) For the purpose of international carriage governed by the Montreal convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.