Decision No. 13-C-A-2022

[1] Chris Van Slyke purchased a round-trip interline ticket to travel from London, Ontario, to Tel Aviv, Israel, departing on February 21, 2020, and returning on February 26, 2020. His inbound itinerary consisted of flights from Tel Aviv to London, via Frankfurt, Germany, and Toronto, Ontario. The flight from Tel Aviv to Frankfurt was operated by Lufthansa, and the remaining inbound flights were operated by Air Canada.

[2] When Mr. Van Slyke arrived in Toronto on February 26, 2020, he found that his piece of checked baggage had not arrived on the flight. He filled out a delayed baggage claim form with Air Canada. He informed Air Canada that he had another flight to the United States the following day and requested that his missing piece of baggage be delivered by 1:00 p.m. on February 27, 2020, a few hours before his trip to the United States. His piece of baggage was delivered to a neighbour’s address on February 27, 2020, after he left for the airport.

[3] On February 27, 2020, Mr. Van Slyke purchased toiletries for CAD 118.03 in London and departed for the United States. On February 29, 2020, he purchased clothing, running shoes and sandals for USD 976.73. Air Canada compensated him for the toiletries purchased on February 27, 2020, in the amount of CAD 118.03.

[4] Mr. Van Slyke seeks compensation in the amount of USD 976.73 (CAD 1,311.65) for the outstanding expenses that he incurred as a result of the delayed delivery of his baggage.

[5] In this decision, the Agency’s role is to decide whether a carrier properly applied its tariff to the ticket Mr. Van Slyke purchased.

[6] Both Air Canada and Lufthansa were named as respondents, and they submitted a joint answer. However, since Mr. Van Slyke filed his baggage claim with Air Canada only and considering that Air Canada was responsible for the delivery of the piece of baggage, the Agency finds it appropriate to dismiss the application against Lufthansa. The Agency will therefore decide whether Air Canada properly applied its Tariff^{Note 1}[1]. The relevant provision of the Tariff is set out in the Appendix.

[7] Rule 105(B)(5) of the Tariff incorporates the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention). The relevant provision of the Montreal Convention is also set out in the Appendix.

[8] Article 19 of the Montreal Convention states that the carrier is liable for damage of baggage occasioned by delay in the carriage by air unless 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 do so. Mr. Van Slyke argues that he waited until after 1:00 p.m. on February 27, 2020, the deadline he provided to Air Canada, and then proceeded to the airport for his next flight without the delayed piece of baggage. According to Mr. Van Slyke, he needed to purchase items to replace those packed in his delayed piece of baggage.

[9] Air Canada submits that Mr. Van Slyke was contacted while the delayed piece of baggage was en route to his home and, because he was on his way to the airport, he requested his baggage be delivered to a neighbour. As he agreed to this, Air Canada claims it is not liable for the additional expenses he incurred after his baggage was delivered. Furthermore, Air Canada submits that Mr. Van Slyke did not mitigate his expenses as arrangements could have been made to have his baggage delivered to him in the United States. However, Mr. Van Slyke submits that he was not offered this option.

[10] Air Canada was aware that Mr. Van Slyke required his baggage to be delivered by 1:00 p.m. on February 27, 2020, as he was departing for another trip. However, by the time the piece of baggage was delivered, Mr. Van Slyke had already left. As a result, Mr. Van Slyke had to purchase replacement items while he was on his trip in the United States. In accordance with Article 19 of the Montreal Convention, the Agency finds that Air Canada is liable for the expenses that Mr. Van Slyke incurred for these replacement items. Air Canada was aware that Mr. Van Slyke needed his piece of baggage delivered by a certain time, and the Agency finds it has not met its burden of proving that it took all measures reasonably required to avoid the damage caused by the delay, or that it was impossible to take such measures. While Air Canada claims that Mr. Van Slyke could have asked to have the baggage delivered in the United States, it did not offer to do so, and Mr. Van Slyke was not obligated to request it. Therefore, Air Canada did not properly apply Rule 105 of its Tariff when it refused to compensate him for his additional expenses.

[11] Air Canada also argues that Mr. Van Slyke purchased non-essential items and an unreasonable amount of clothing, rather than using items that he had at home. However, the Agency accepts Mr. Van Slyke’s statement that he had a week’s worth of belongings in his baggage and that he needed to purchase replacement items for his ten-day trip to the United States. In Decision No. 31-C-A-2021 (Wu v Air Canada), the Agency similarly found that the applicants’ expenses, including some semi-formal clothing, were reasonable even though they were returning home. In this case, the Agency considers the purchase of running shoes, clothing and sandals to be reasonable. Therefore, the Agency finds that Mr. Van Slyke is entitled to compensation for these expenses.

ORDER

[12] In light of the above, the Agency, pursuant to section 113.1 of the ATR, orders Air Canada to compensate Mr. Van Slyke in the amount of CAD 1,311,65. Air Canada is to pay this amount to Mr. Van Slyke as soon as possible and no later than March 25, 2022
 

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APPENDIX TO DECISION NO. 13-C-A-2022

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention

Article 19 – Delay

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.

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, NTA(A) No. 458

Rule 105 – Liability of Carriers

(A)  Successive carriers

Carriage to be performed under one ticket or under a ticket and any conjunction ticket issued in connection therewith by several successive carriers is regarded as a single operation.

(B)  Laws and provisions applicable

(1) The carrier agrees in accordance with article 22(1) of the convention for the unification of certain rules relating to international Transportation by air signed at Warsaw, October 12, 1929 or, where applicable, that convention as amended by the protocol signed at the Hague on September 28, 1955 (the “convention”) that, as to all international carriage or transportation hereunder as defined in the convention:

(a) The carrier shall not invoke the limitation of liability in article 22(1) of the convention as to any claim for recoverable compensatory damages arising under article 17 of the convention.

….

(5) 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.

 

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