Decision No. 76-C-A-2019

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding a baggage delay while travelling from Toronto, Ontario, to Washington, D.C., United States of America. A refund of the baggage fee is sought as well as compensation for pain, suffering, and loss of enjoyment.

[2] On June 20, 2019, the Agency issued Decision No. LET-A-47-2019 (Decision), pursuant to subsection 42(2) of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules).

[3] In the Decision, the Agency stated that it was of the preliminary opinion that the application contained a “fundamental defect” on the basis that the application did not claim or establish that:

1. Air Canada failed to apply the terms and conditions of carriage set out in its International Passenger Rules and Fares Tariff, NTA(A) No. 458 (Tariff), or applied terms and conditions not set out in its Tariff;
2. the terms and conditions in Air Canada’s Tariff are unjust and unreasonable;
3. the terms and conditions in Air Canada’s Tariff are unjustly discriminatory; or
4. the terms and conditions in Air Canada’s Tariff are unclear.

[4] As a result, the Agency provided the applicant with an opportunity to justify why the Agency should not dismiss the application. The applicant filed a response on July 2, 2019.

[5] For the reasons set out below, the Agency dismisses the application.

BACKGROUND

[6] The applicant travelled on an Air Canada flight from Toronto to Washington on November 1, 2018. The applicant’s checked baggage was delayed upon arrival and not delivered for two days. While waiting for the baggage, the applicant purchased temporary replacement items. When the baggage was delivered, its contents were waterlogged, and the clothing inside had to be dry cleaned. The applicant also incurred taxi expenses from the Ronald Reagan Washington National Airport to the hotel accommodation and for dry cleaning services.

[7] Air Canada compensated the applicant with CAD 630 for the cost of the taxi, temporary replacement items, and dry cleaning.

PRELIMINARY MATTER

[8] In the response to the Decision, the applicant raises two instances in the supporting documents to the application where medical information was not redacted in accordance with the Decision. The Agency will redact the supporting documents in accordance with the Decision, and the unredacted versions will be removed from the record.

THE LAW AND RELEVANT TARIFF PROVISIONS

[9] Subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR) requires that a carrier operating an international service properly 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, 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.

[11] Rule 60(A)(5)(b) of the Tariff provides, with regard to the collection and delivery of baggage:

Checked baggage will be delivered to the bearer of the baggage check upon payment of all unpaid sums due to carrier under contract of carriage or tariff.

….

[12] Rule 5(A)(2) of the Tariff states, in part, that:

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.

[13] Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) establishes liability 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.

[14] Paragraph 2 of Article 22 of the Montreal Convention sets out the limits 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.

POSITION OF THE APPLICANT

[15] In the original application, the applicant sought compensation for the following:

• USD 387.89 for hotel accommodation for three nights, as the applicant submits that this expense would not have been incurred, had the actual late arrival of the baggage been known in advance;
• CAD 200 for not having access to medication and a medical device, which had been packed in the delayed baggage;
• CAD 700 for the time spent having clothes dry-cleaned and purchasing temporary replacement items; and
• CAD 31.50 for the checked baggage fee.

[16] In response to the Decision, the applicant asserts that it is unreasonable that Air Canada’s Tariff does not allow the carrier to be held liable for the loss of a significant amount of personal vacation time. The applicant also asserts that it is unreasonable that Air Canada’s Tariff allows the carrier to deliver checked baggage where the contents of the baggage are wet, or otherwise unwearable or unusable, and does not require the carrier to reimburse the baggage fee to the passenger.

ANALYSIS AND DETERMINATIONS

[17] In the Decision, the Agency identified certain deficiencies associated with the application and provided the applicant with an opportunity to clarify the specific nature of the claim, how it relates to the mandate and jurisdiction of the Agency, and the legal obligations of Air Canada.

[18] Rule 5(A)(2) of the Tariff states that for the purpose of international carriage, the Montreal Convention establishes liability rules for damages incurred as a result of delayed baggage. Article 19 of the Montreal Convention states that the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage, or cargo. Article 22 of the Montreal Convention sets out the limitations of liability in respect of destruction, loss of, or damage or delay to baggage, at 1,131 Special Drawing Rights (approximately CAD 2,059.58) per passenger in most cases.

[19] The applicant notes that Air Canada has already provided compensation in the amount of CAD 630 for the cost of the taxi, temporary replacement items, and dry cleaning. In so doing, Air Canada compensated the applicant for costs incurred as a result of the delayed baggage and damage to baggage, as required by its Tariff.

[20] Aside from the applicant’s claim for the checked baggage fee, all remaining requests for compensation relate to pain, suffering, or loss of enjoyment. The Agency has ruled that it does not have jurisdiction to award compensation for pain, suffering, or loss of enjoyment, as set out in Decision No. 361-C-A-2007.

[21] Rule 60(A)(5)(b) of Air Canada’s Tariff addresses the baggage fee as follows: “Checked baggage will be delivered to the bearer of the baggage check upon payment of all unpaid sums due to carrier under contract of carriage or tariff.” Based on the Tariff, a fee is owed to Air Canada for delivering baggage, even if this delivery is late. Neither the wet condition of the contents of the checked baggage nor the lateness of its delivery is grounds for the reimbursement of the checked baggage fee according to the Tariff.

[22] Provisions in the Air Passenger Protection Regulations, SOR/2019-150, which came into force on July 15, 2019, require that, if baggage is damaged, the carrier must provide compensation equal to or greater than the sum of the fees paid for that baggage.

[23] However, because these provisions were not in force when the applicant travelled, they cannot be applied retroactively.

[24] Consequently, the Agency finds that the applicant has failed to demonstrate that Air Canada acted inconsistently with the ATR at the time of the incident, and that the applicant has not provided sufficient evidence or arguments to justify why the Agency should not dismiss the application.

CONCLUSION

[25] The Agency dismisses the application.