Decision No. 61-C-A-2017

SUMMARY

[1] Geethaa Yoganathanng filed an application with the Canadian Transportation Agency (Agency) against Emirates with respect to the delay in the delivery of her checked baggage and Emirates’ refusal to compensate her for all the expenses incurred as a result of the delay.

[2] Ms. Yoganathanng is seeking reimbursement in the amount of 46,028 Indian rupees (INR) [CAD$911.63] for clothing and gifts that she had to purchase due to the delay in the delivery of her baggage. She is also seeking reimbursement for travel to and from the Chennai International Airport (Airport) and to Emirates’ office with respect to her delayed baggage.

[3] The Agency will address the following issue:

Did Emirates properly apply the terms and conditions set out in Rules 55(B)(3) and 55(C)(9) of its International Passenger Rules and Fares Tariff, NTA(A) No. 503 (Tariff) with regards to baggage delay (which incorporates by reference the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention [Montreal Convention]), as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)? If Emirates did not properly apply the terms and conditions set out in Rules 55(B)(3) and 55(C)(9) of its Tariff, what remedy, if any, is available to Ms. Yoganathanng?

[4] For the reasons set out below, the Agency finds that Emirates did not properly apply the terms and conditions set out in Rules 55(B)(3) and 55(C)(9) of its Tariff. Therefore, the Agency orders Emirates to compensate Ms. Yoganathanng in the amount of CAD$676.69 by April 27, 2017.

BACKGROUND

[5] Ms. Yoganathanng purchased a round-trip ticket from Emirates for travel departing on March 2, 2016 from Toronto, Ontario, Canada to Chennai, India via Dubai, United Arab Emirates and returning from Chennai to Toronto via Dubai on March 9, 2016. Specifically, Ms. Yoganathanng travelled on Emirates’ Flight No. EK242 from Toronto to Dubai, arriving on March 3, 2016, and on Flight No. EK542 from Dubai to Chennai, arriving on March 4, 2016.

[6] Ms. Yoganathanng’s checked baggage was delayed and she was therefore not able to collect it at her arrival at the Airport on March 4, 2016. She contacted Emirates, and an investigation was initiated to track and locate the delayed baggage.

PRELIMINARY MATTER

[7] In their submissions, the parties made reference to private discussions during which offers of settlement were made. Such settlement discussions are protected by the common law principle of settlement privilege. Pursuant to that principle, discussions intended to lead to settlement of a dispute are inadmissible as evidence and cannot form part of the record unless both parties agree otherwise (see Union Carbide Canada Inc. v. Bombardier Inc., [2014] 1 S.C.R. 800, at paragraphs 31 and 32). Accordingly, the Agency has given no consideration to such information in its review of the application.

THE LAW

[8] The provisions of the Montreal Convention, statutory extracts and Tariff provisions relevant to this matter are set out in the Appendix.

MS. YOGANATHANNG’S POSITION

[9] Ms. Yoganathanng submits that she travelled to Chennai to attend a function and that she did not receive her baggage until the day of her return flight to Toronto.

[10] Ms. Yoganathanng submits that she filed a lost baggage form and left the Airport. She adds that she called Emirates’ office in India regarding her lost baggage and was advised that she had to return to the Airport to verify her claim. She alleges that she had to travel to the Airport and to Emirates’ office in Nungambakkam several times at her own expense.

[11] Ms. Yoganathanng alleges that she made further calls to Emirates’ office and was told that her baggage would arrive at the Airport on March 8, 2016 at 10:00 a.m. However, according to her, the baggage was not delivered to where she was staying and she incurred further expenses for transportation to the Airport to collect her baggage. According to Ms. Yoganathanng, her baggage was delivered to her “just hours before getting the return flight”.

[12] Ms. Yoganathanng submits that Emirates offered her compensation for her delayed baggage, but the amount offered did not cover all her expenses for the items that she had to purchase due to the delay in the delivery of her baggage.

EMIRATES’ POSITION

[13] Emirates submits that it contacted Ms. Yoganathanng on March 6, 2016 and informed her that her baggage would be returned to her within 24 hours. Emirates adds that the delayed baggage was delivered to her on March 7, 2016. Emirates states that Ms. Yoganathanng continued to purchase items after she had received her baggage.

[14] With respect to the amount of compensation that Ms. Yoganathanng is seeking, Emirates argues that she did not substantiate that she was attending a wedding (she refers to a “function”) nor did she substantiate that there were gifts in the delayed baggage. In addition, she did not specify the value of these gifts, and provided no receipts.

[15] Emirates argues that, as a matter of Canadian law, as summarized in Sreih v. Middle-East Airline-Airliban (2013) QCCQ 2630 (Sreih v. MEA), it is not required to compensate the passenger for unreasonable purchases made without mitigation on the part of the passenger. Emirates submits that, consistent with the legal principles of restitution in Canada, Ms Yoganathanng would be unjustly enriched if she were to receive further payment as the delayed baggage (and the alleged gifts that it contained) was returned to her. According to Emirates, as a matter of equity, a Canadian court would require that Ms. Yoganathanng return the unjustly enrichment to Emirates (any compensation paid would be returned).

[16] Emirates states that the maximum liability that it would have in relation to the delayed baggage is INR 7,954 (CAD$157.01). This amount includes five sarees and four chudidhars, which Emirates believes is more than sufficient for the period for which Ms. Yoganathanng was missing her baggage. Emirates, relying on Sreih v. MEA, argues that any further purchases of clothing were not reasonable given that Ms. Yoganathanng still had one of her baggage, and that her other baggage was only delayed for a short period of time.

[17] Emirates argues that a Canadian court would find that Ms. Yoganathanng has not suffered any damage/loss as the delayed baggage and the alleged gifts that it contained were returned to her before she departed India.

ANALYSIS AND DETERMINATION

[18] 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, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[19] Tariff Rule 55(B)(3) provides that “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.”

[20] Article 19 of the Montreal Convention requires an air carrier to provide compensation to passengers whose baggage has been delayed; this obligation is subject to the limits provided for in Article 22 of the Montreal Convention. Furthermore, it is subject to the condition that the carrier took all measures that could reasonably be required to avoid the damage.

[21] Ms. Yoganathanng claims that she retrieved her delayed baggage at the Airport on March 9, 2016 when she was about to take her return flight. However, Emirates claims that it delivered her delayed baggage on March 7, 2016.

[22] When contradictory versions of events are presented by parties, the Agency has previously ruled, most recently in Decision No. 426-C-A-2013 (Gibbins v. Société Air France carrying on business as Air France), that the burden of proof falls on the applicant to establish that their version is most likely to have occurred. The Agency, in considering the evidence, must determine which of the different versions is more probable, based on the preponderance of evidence.

[23] Emirates filed a signed baggage delivery receipt dated March 7, 2016 in support of its argument. The Agency finds that, based on this evidence, Emirates delivered Ms. Yoganathanng’s delayed baggage on March 7, 2016. The Agency also finds that, on a balance of probabilities, Emirates has failed to meet its burden of proving that it made reasonable efforts to deliver Ms. Yoganathanng’s baggage upon her arrival, as required by Article 19 of the Montreal Convention.

[24] In support of her application, Ms. Yoganathanng filed receipts specifying the date and time of purchase for the items for which she is claiming compensation. In particular, she filed the following receipts, totalling INR 46,028.

• March 4, 2016 (2:45 p.m.): INR 3,730 for clothing and other items;
• March 4, 2016 (4:14 p.m.): INR 21,880 for clothing and other items;
• March 4, 2016 (4:51 p.m.): INR 3,560 for clothing;
• March 5, 2016 (5:33 p.m.): INR 3,750 for clothing;
• March 5, 2016 (8:50 p.m.): INR 1,570 for clothing and another item;
• March 5, 2016 (8:50 p.m.): INR 3,949 for clothing and other items;
• March 7, 2016 (9:05 p.m.): INR 2,800 for clothing;
• March 7, 2016 (9:13 p.m.): INR 980 for clothing; and,
• March 8, 2016 (no time shown): INR 3,809 for clothing.

[25] Tariff Rule 55(C)(9) states, in part, that: “In no case shall Carrier’s liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.”

[26] Although Ms. Yoganathanng requested compensation for transportation fees to the Airport and Emirates’ office, she did not identify the amount of compensation she is seeking. The Agency therefore dismisses this element of the application.

[27] Article 22(2) of the Montreal Convention limits the carrier’s liability, in case of destruction, loss of, damage to or delay of baggage, to an amount of 1,131 Special Drawing Rights (SDR) [approximately CAD$2,007] for each passenger.

[28] Emirates initially offered Ms. Yoganathanng compensation in an amount that is less than what she is seeking. Ms. Yoganathanng submits that this compensation does not cover the cost of transportation and all items that she purchased.

[29] Emirates argues that the purchases made by Ms. Yoganathanng are unreasonable, that she did not mitigate her damage, and that consistent with Sreih v. MEA, Emirates is only liable to compensate Ms. Yoganathanng for items purchased for her immediate needs while her baggage was delayed.

[30] In Decision No. 353-C-A-2012 (Shetty v. Air Canada), the Agency stated that:

[…] what is reasonable in one circumstance may not be in another. Each situation must be evaluated on its own merits in light of the specific circumstances of the case. The Agency is of the opinion that, in the circumstances, Ms. Shetty provided a reasonable explanation for the purchases she made. The Agency accepts that at the time she went shopping to buy replacement items, Ms. Shetty could not be certain when she would get her baggage back.

[31] In this case, Ms. Yoganathanng submits that she was travelling for a function and that the items she purchased were to replace clothing for that function and gifts for family that were packed in her baggage that was delayed. Therefore, the Agency finds that, consistent with Shetty v. Air Canada, Ms. Yoganathanng has provided a reasonable explanation for the purchases that she made.

[32] The Agency notes that although it found that Emirates delivered the baggage to Ms. Yoganathanng on March 7, 2016 instead of March 9, 2016, as alleged by Ms. Yoganathanng, under Articles 19 and 22(2) of the Montreal Convention (both being incorporated by reference into the Tariff), Emirates is liable for damage occasioned by delay up to an amount of 1,131 SDR. The Agency therefore finds that Ms. Yoganathanng is entitled to compensation for the purchases she made prior to March 7, 2016, more specifically in the amount of INR 38,439 (CAD$676.69).

[33] Accordingly, the Agency finds that Ms. Yoganathanng is entitled to compensation in accordance with the Montreal Convention for damage occasioned by the delay of her baggage, and that she provided sufficient evidence to establish, on a balance of probabilities, that she incurred expenses totalling INR 38,439 (CAD$676.69) which represents the replacement value for the items that she required while her baggage was delayed.

[34] Based on the above, the Agency finds that Emirates did not properly apply the terms and conditions set out in Rules 55(B)(3) and 55(C)(9) of its Tariff, which incorporates the Montreal Convention by reference, and has therefore contravened subsection 110(4) of the ATR.

ORDER

[35] Pursuant to section 113.1 of the ATR, the Agency orders Emirates to provide Ms. Yoganathanng compensation in the amount of CAD$676.69 by April 27, 2017.

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APPENDIX

Emirates’ International Passenger Rules and Fares Tariff, NTA(A) No. 503

Rule 55(B)(3)

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.

Rule 55(C)(9)

If the Montreal Convention applies to a passenger’s journey, any liability of Carrier for checked and unchecked baggage is limited to the maximum of 1131 SDRs (approximately US$+[R]$1735/USD $+[R]1848 CAD) per passenger unless higher value is declared in advance and additional charges are paid pursuant to Carrier tariff. In no case shall Carrier’s liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss.

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.

Article 22(2) – 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 1131 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. […]