Decision No. 107-C-A-2017

SUMMARY

[1] Shahbaz Ahmad filed an application with the Canadian Transportation Agency (Agency) against PIA regarding the loss of one of his checked bags while travelling from Lahore, Pakistan to Toronto, Ontario, Canada on November 18, 2016.

[2] Mr. Ahmad is seeking reimbursement in the amount of CAN$1,568.12: CAN$1,250 for the contents of his lost bag and the cost to replace his suitcase, CAN$288.12 for the cost of purchasing necessities while without his bag and CAN$30 for the cost of parking at the Toronto Pearson International Airport (Pearson Airport).

[3] The Agency will address the following issue:

Did PIA properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 324 (Tariff) which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montréal on 28 May 1999 (Montreal Convention), by not compensating Mr. Ahmad as required by Article 17(2) of the Montreal Convention, thereby contravening subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If PIA did not properly apply its Tariff, what remedy, if any, is available to Mr. Ahmad?

[4] For the reasons set out below, the Agency finds that PIA did not properly apply the terms and conditions set out in Rule 55(C)(5) of its Tariff and orders PIA to compensate Mr. Ahmad in the amount of CAN$1,280 as soon as possible and no later than January 23, 2018.

BACKGROUND

[5] Mr. Ahmad purchased a one-way ticket from PIA to travel on Flight No. PK797 departing on November 18, 2016 from Lahore to Toronto. Upon arrival at the Pearson Airport on November 18, 2016, Mr. Ahmad was unable to locate his checked bag and he filed a Property Irregularity Report with PIA.

[6] On January 1, 2017, Mr. Ahmad filed a Baggage Claim Form with PIA listing the contents that were in his missing bag and the amount that he was claiming from PIA.

THE LAW

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

[8] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

1. take the corrective measures that the Agency considers appropriate; and
2. pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges, or terms and conditions set out in the tariff.

[9] Article 17(2) of the Montreal Convention, which sets out a carrier’s liability for lost and damaged baggage, provides in part that:

The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier.

[10] Rule 55(C)(5) of the Tariff incorporates the Montreal Convention and provides as follows:

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.

POSITIONS OF THE PARTIES

Mr. Ahmad’s position

[11] Mr. Ahmad claims that upon arrival at the Pearson Airport on November 18, 2016, he was unable to locate one of his checked bags and immediately informed PIA. According to Mr. Ahmad, he filed a Property Irregularity Report, after which PIA advised him that it would ship the bag to him within 21 days; however, if the bag was not found, it would send him a compensation form.

[12] According to Mr. Ahmad, it had been a month since he filed his claim and he still had not received a response from PIA, so he went to PIA’s Toronto office. Mr. Ahmad submits that the agent at PIA’s Toronto office advised him to go to the Pearson Airport and speak with a PIA agent, which he did; however, he was still unable to resolve the issue.

[13] Mr. Ahmad states that he sent an e-mail to PIA on December 27, 2016 to which PIA responded by inviting him to search for his bag in the unknown baggage at the Pearson Airport. Mr. Ahmad submits that he went to the Pearson Airport on December 30, 2016, but was unable to locate his bag. Mr. Ahmad adds that a PIA agent then provided him a Baggage Claim Form to fill out and submit, which he did on January 1, 2017.

[14] Mr. Ahmad states that he was required to purchase replacement items while without his bag and that he was required to pay for parking at the Pearson Airport on two separate occasions when he was asked by PIA to go there.

[15] According to Mr. Ahmad, PIA then contacted him on numerous occasions to try to settle the issue; however, he was not happy with the amount offered and declined it.

PIA’s position

[16] PIA acknowledges that Mr. Ahmad travelled on Flight No. PK797 and that his bag was missing when he arrived at the Pearson Airport on November 18, 2016. According to PIA, there was a delay in locating Mr. Ahmad’s bag because PIA Toronto was trying to get in touch with PIA Lahore. PIA also acknowledges that when it was unable to locate Mr. Ahmad’s bag, it requested Mr. Ahmad to fill out a claim form. PIA states that Mr. Ahmad filled out the form, listing the contents of his bag and the amount that he was claiming, CAN$1,280.

[17] PIA argues that the amount that Mr. Ahmad is seeking is unreasonable.

Findings of Fact

[18] It is undisputed that Mr. Ahmad’s bag was lost while travelling on Flight No. PK797 on November 18, 2016 during the time that it was in the care and control of PIA.

ANALYSIS AND DETERMINATIONS

[19] 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 the terms and conditions set out in its tariff.

[20] Rule 55(C)(5) of the Tariff incorporates by reference the liability rules set out in the Montreal Convention, which governs a carrier’s liability for lost and damaged baggage if the event that caused the loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier.

[21] Given that Mr. Ahmad’s bag was under the care and control of PIA when it was lost, the Agency finds that PIA is liable under Article 17(2) of the Montreal Convention for the loss of Mr. Ahmad’s bag.

[22] Mr. Ahmad is seeking CAN$1,568.12: CAN$1,250 for the contents of his lost bag and the cost to replace his suitcase, CAN$288.12 for the cost of purchasing necessities while without his bag, and CAN$30 for the cost of parking at the Pearson Airport. PIA disputes the amount claimed by Mr. Ahmad.

[23] The Agency notes that a party, in endeavouring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case. While the production of original receipts of purchase will generally support proof of loss, circumstances may render it unreasonable to require this form of proof. Other methods such as a sworn affidavit or the inherent reasonableness of expenses claimed could, in some cases, be adequate.

[24] Mr. Ahmad filed a list of all items that were lost in his bag along with the cost of each item. Mr. Ahmad also provided receipts for the necessities that he was required to purchase while without his bag.

[25] PIA argues that the amount that Mr. Ahmad is seeking is unreasonable, but it did not file any information in support of its argument. Therefore, Mr. Ahmad’s assertions are unchallenged and his evidence is uncontested.

[26] The Agency is satisfied that Mr. Ahmad’s lost bag contained clothing and toiletries that amount to CAN$1,250. With respect to Mr. Ahmad’s claim for the cost of purchasing necessity replacement items, totaling CAN$288.12, the Agency finds that as PIA is liable for the value of the lost clothing and items in the lost bag, there is no basis upon which to require PIA to also pay for the cost of the replacement items that Mr. Ahmad was required to purchase as such an order would amount to double recovery.

[27] The Agency is also satisfied that Mr. Ahmad’s claim of CAN$30 for the cost of airport parking is reasonable as Mr. Ahmad was asked to go to the airport by PIA on two separate occasions, and PIA does not contest the parking costs.

[28] Based on the above, the Agency finds that PIA, in not compensating Mr. Ahmad for his lost bag and related parking expenses, failed to apply the terms and conditions set out in Rule 55(C)(5) of its Tariff, which incorporates the Montreal Convention by reference, and has therefore contravened subsection 110(4) of the ATR.

ORDER

Pursuant to section 113.1 of the ATR, the Agency orders PIA to compensate Mr. Ahmad in the amount of CAN$1,280 as soon as possible and no later than January 23, 2018.