Decision No. 11-C-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the delayed delivery and damage to his checked piece of baggage while travelling from Jackson Hole, Wyoming, to Halifax, Nova Scotia, via Denver, Colorado, and Toronto, Ontario, on January 12, 2019.

[2] The applicant is seeking compensation for the expenses he incurred as a result of the delayed delivery of his piece of baggage and for the cost of replacing his damaged baggage.

[3] The Agency will address the following issue:

Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA Areas 1/2/3 and between the USA and Canada, NTA(A) No. 458 (Tariff), which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) with regard to the liability of carriers respecting delayed and damaged baggage, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88‑58, as amended (ATR)? If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedies, if any, are available to the applicant?

[4] For the reasons presented below, the Agency finds that Air Canada did not properly apply the terms and conditions set out in Rule 105(B)(5) of its Tariff. Therefore, pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate the applicant in the amount of CAD 525.74 for the damage to his snowboarding bag and the cost of the equipment rental. Air Canada is to pay this amount to the applicant as soon as possible and no later than March 5, 2020.

BACKGROUND

[5] The applicant booked a round trip flight from Halifax to Jackson Hole, with connections in Toronto, Atlanta, Georgia, and Denver. Upon arrival in Halifax on January 12, 2019, the applicant’s checked piece of baggage, a snowboarding bag, was delayed. When it was finally delivered to him on January 14, 2019, approximately 43 hours after his arrival, it was damaged. As a result of the delay in receiving his baggage, the applicant purchased replacement items and incurred expenses for equipment rental and a one-day ski lift ticket.

THE LAW AND RELEVANT TARIFF PROVISIONS

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

[7] If the Agency finds that a 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.

[8] Rule 105(B)(5) of the Tariff states:

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.

[9] Article 17, paragraph 2 of the Montreal Convention establishes liability rules for damage incurred as a result of destruction, lost, or damaged baggage:

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] Article 17, paragraph 3 of the Montreal Convention states:

If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

[11] Article 19 of the Montreal Convention establishes liability rules for damages incurred as a result of delayed baggage:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

[12] Article 22, paragraph 2 of the Montreal Convention sets out the limitations of liability in relation to delay, baggage and cargo:

In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1,131 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicant

[13] The applicant is seeking compensation in the amount of CAD 1,415.21 for the following expenses:

• CAD 433.74 for the replacement of his damaged baggage;
• CAD 346.71 for the shipping fees to return his replacement snowboarding equipment;
• CAD 427.76 for replacement toiletries;
• CAD 115 for a one-day ski lift ticket; and
• CAD 92 for equipment rental.

[14] The applicant argues that the damage to his snowboarding bag cannot be repaired. To support this claim, he filed a document from a tailor indicating that the bag cannot be repaired and returned to its original form. The applicant states that he visited different luggage retailers in Halifax, two out of which recommended the services of this tailor.

[15] With regard to the rental equipment and the one-day ski lift ticket, the applicant submits that his snowboarding equipment and his season pass for Wentworth Valley, which was attached to his jacket, were in the delayed snowboarding bag. He therefore had to incur these expenses in order to ski on January 13, 2019.

Air Canada

[16] Air Canada submits that it has offered to have the snowboarding bag repaired but that the applicant declined, saying it could not be repaired. Air Canada argues that the tailor visited by the applicant is not specialized in repairing items such as a snowboarding bag.

[17] With regard to the one-day ski lift ticket and the equipment rental, Air Canada argues that the applicant’s credit card statement indicates that the purchase was made on January 16, 2019, which does not match the date the applicant said he skied on, which was January 13, 2019. Air Canada asserts that the applicant contradicts himself on this point because he first stated, in an e-mail sent to Air Canada, that he missed a day of skiing on January 13, 2019, but then claims to have skied on that day and now seeks reimbursement.

[18] Air Canada contends that the amount of CAD 427.76 to replace toiletries while at home is excessive. Air Canada also submits that the document filed by the applicant in support of this claim cannot be relied upon as it does not show any date or order number. Furthermore, because the items were bought online, Air Canada claims that they most likely did not arrive before the applicant retrieved his baggage.

Findings of fact

[19] Both parties agree that the applicant’s baggage was delayed and that his snowboarding bag was damaged.

ANALYSIS AND DETERMINATION

[20] 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.

[21] Rule 105(B)(5) of Air Canada’s Tariff states that for the purpose of international carriage, the liability rules set out in the Montreal Convention are fully incorporated in its tariff. Article 17, paragraph 2 of the Montreal Convention states that the carrier is liable for damage resulting from damage to checked baggage. Article 22 of the Montreal Convention sets out the limitations of liability in respect of destruction, loss of, damage or delay to baggage, at 1,131 Special Drawing Rights (approximately CAD 2,059.58) per passenger in most cases.

[22] The only evidence filed with the Agency suggests that the snowboarding bag could not be repaired. While Air Canada took issue with the expertise of the tailor relied upon by the applicant and claimed that the bag could likely be repaired by the experienced service providers with which it works, it provided no evidence to suggest that these service providers would have come to a conclusion different than that of the applicant’s tailor. Accordingly, the Agency finds that the snowboarding bag could not be repaired. The Agency therefore finds that Air Canada did not properly apply the terms and conditions set out in its Tariff regarding damage to the applicant’s baggage.

[23] With regard to the equipment rental and the one-day ski lift ticket, there is an inconsistency in the applicant’s statements. In particular, the correspondence sent by the applicant to Air Canada indicated that he incurred losses for “missing my ski day on Sunday January 13^th.” The later correspondence, however, suggests that the applicant did not miss his ski day, but instead rented the necessary equipment from Wentworth Valley and had to buy a ski lift ticket. Notwithstanding this inconsistency in his statements, the applicant’s credit card statement demonstrates that he did, as a matter of fact, incur certain expenses at Wentworth Valley. While these charges were posted only on January 16, 2019, it is entirely possible that the charges were posted later than the day they were incurred. Noting no evidence to the contrary, the Agency accepts that these charges were incurred in connection with his ski day on January 13. To that end, the Agency views rental costs for a replacement snowboarding equipment to be reasonable in the circumstances. The applicant is entitled to be compensated for the cost of the equipment rental, as this expense was incurred only because the baggage containing his own snowboarding equipment was delayed.

[24] The difficulty lies with the fact that, to the extent that the applicant recovered his snowboarding bag with his ski lift ticket and thus would have been in a position to demonstrate that he already had a season pass, one would have expected Wentworth Valley to have reversed any credit card charges associated with a daily ticket. Although the Agency has considerable sympathy for the situation in which the applicant found himself, in failing to seek the reversal of this charge, the applicant has not mitigated his damages.

[25] As for the shipping fees to return the replacement snowboarding equipment, the Agency finds that the applicant’s baggage, which contained his snowboarding equipment, was delayed, but that there was no reason for the applicant to believe that it would not eventually be found and returned.

[26] The decision to purchase entirely new equipment, in the circumstances of a bag which at this point had been delayed a mere 43 hours, was premature.

[27] Pursuant to Article 17, paragraph 3 of the Montreal Convention, if checked baggage does not arrive at its destination within 21 days following the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage.

[28] The Agency would read this as meaning that, as the option of equipment rental was available, and the baggage had not been declared lost, the purchase of replacement snowboarding equipment prior to the expiration of 21 days was premature and was not claimable damage flowing from the delayed delivery of the piece of baggage. The same reasoning would apply with regard to the shipping charges for the return of the purchased replacement snowboarding equipment. The circumstances are different than those of purchase of necessary clothing at destination when baggage is delayed. Accordingly, the Agency finds that the shipping expenses to return the purchased snowboarding equipment are not expenses which are compensable.

[29] With respect to replacement toiletries, as the applicant did not provide any evidence that would indicate the order and delivery date of the items, he has not established that they were purchased to meet his immediate needs while his baggage was delayed. Additionally, the applicant did not explain whether he received and used the replacement items before his baggage was returned to him or, if not, whether he tried to return them to the online retailer in order to mitigate his damages. Consequently, the applicant did not provide sufficient evidence to substantiate his claim for toiletries.

CONCLUSION

[30] The Agency finds that the applicant has established, on a balance of probabilities, that by failing to compensate him for the damage to his snowboarding bag and the cost of equipment rental, Air Canada did not properly apply the terms and conditions set out in Rule 105(B)(5) of its Tariff with regard to the liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.

[31] However, the Agency finds that the applicant did not provide sufficient evidence to substantiate his claims for the one-day ski lift ticket, the shipping fees to return his snowboarding equipment and the cost of replacement toiletries.

ORDER

[32] Therefore, pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate the applicant in the amount of CAD 525.74 for the damage to his snowboarding bag and the cost of equipment rental. Air Canada is to pay this amount to the applicant as soon as possible and no later than March 5, 2020.