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Confusion over Check-In Procedures Leads to Damages for Delay
Published in the April 2010 issue of Transportation Notes - View Article
There are relatively few decisions in Canada involving damages for delay under the Montreal Convention.
In a recent decision from the Small Claims Court of Ontario, the carrier was found liable for the plaintiff’s delay due to its failure to assist the plaintiff in the check-in process and its provision of inaccurate information respecting check-in requirements.
The plaintiff was scheduled to travel on the outbound leg of a return ticket from Toronto to London (U.K.) via Ottawa. According to the plaintiff’s version of events, he arrived at the airport at about 6:00 pm for his flight from Toronto to Ottawa which was scheduled to depart at 8:10 pm. He initially tried to check-in through the express kiosk but it malfunctioned, and he then stood in a queue to check-in for a domestic flight.
At about 6:45 pm he reached the check-in counter and advised the agent that his final destination was London via Ottawa. The agent told him that since his final destination was London, he had to check his luggage at the international counter.
The plaintiff then went to wait in the international check-in queue at about 7:00 pm and, at about 7:30 pm, he was informed by the counter agent that he must return to the domestic counter since the Toronto to Ottawa segment was considered a domestic flight.
The plaintiff was sent back to the domestic counter where he waited in line again. He sought help from an agent at the express kiosk who called a manager to assist. The manager arrived at the scene and advised the plaintiff that as it was 7:35 pm and the flight was scheduled to depart at 8:10 p.m., there was “not enough time” to check his suitcase.
The plaintiff advised the manager that he still had time to check-in as he was still within the 30 minute cut-off time for domestic flights and that alternatively, he could take his suitcase as carry-on. Failing that, he could be accommodated on one of the other two flights to London that evening.
The manager allegedly became argumentative and advised him that he would have to purchase a new ticket for about $2,000 to take another flight since he missed his original flight. The plaintiff remained at the airport but could not get on the 11:00 pm departure for London because the defendant’s agents refused to book him on that flight. The plaintiff eventually departed on the direct flight from Toronto to London the following morning.
The defendant relied on the evidence of a representative of the carrier who testified about the carrier’s procedures and policies and the information gleaned from the Passenger Name Record (“PNR”).
According to a note in the PNR, the plaintiff showed up at the domestic check-in at 7:45 pm for a flight departing at 8:10 pm and was told by the person who wrote the note that his flight had “already closed”. He was not allowed to board. According to the note, the plaintiff protested that he had originally attended at the domestic queue only to be misdirected to the international queue where he stood for an hour. The note also indicated that the plaintiff was quite irate when he was told that he could only be rebooked for the next day.
Under cross-examination, the defendant’s witness admitted that although the note appeared to be written by the manager, this fact had not been verified with the manager. The witness could not confirm when the note was created. She further admitted that the note could have been created by anyone and placed in the PNR long after the events took place.
The witness confirmed that in cases where a ticket covers several segments, the applicable cut-off time was governed by the next segment in the flight sequence, and not the final segment. As the next segment was a domestic one, the domestic cut-off time of 30 minutes prior to departure was applicable and the plaintiff ought to have checked-in at the domestic counter. Sending him to the international queue was an error.
The Court held that little value could be placed on the PNR for the purposes of the case in light of the carrier’s admission that it could not verify the accuracy and timing of the relevant notes captured therein. Although the plaintiff had identified the manager and her name originally appeared on the defendant’s witness list, the defendant failed to call her—the person who had first-hand knowledge of the events—as a witness. This omission proved to be fatal to the defendant’s case as the Court accepted the plaintiff’s version of events.
While the Court recognized that the law in Canada is not yet clear on whether a domestic cause of action could be pursued in the absence of the availability of a Convention remedy, it accepted that Article 19 of the Montreal Convention provided a remedy, namely damages for delay, and therefore the action was governed exclusively by the Convention. The Court held that what constitutes “delay” must be determined on a case-by-case basis. The Court accepted that the only direct and uncontradicted evidence of what happened was to the effect that the plaintiff had arrived well in advance of his flight and was delayed as a result of being misdirected by the defendant to the wrong check-in counter. The Court also found that the plaintiff still had enough time to check-in when he spoke with the manager at 7:35 pm, despite the fact that the PNR recorded the time he showed up at domestic check-in as 7:45 pm. The plaintiff testified that the manager did not tell him that the check-in counter had closed but that he “did not have enough time” to check-in.
The Court concluded, on the balance of probabilities, that check-in was still open while the plaintiff was speaking with the defendant’s manager and the plaintiff might have been able to make his flight had he been allowed to try. Thus the plaintiff was delayed directly by the actions and omissions of the defendant and the defendant did not provide evidence that it had taken all measures that could reasonably be required to avoid the damage, such as assisting the plaintiff with check-in or attempting to send him on another flight to London either direct or through another connecting city.
The defendant also relied on its General Conditions of Carriage to absolve itself of liability. It argued that scheduled times of departure and arrival do not form part of the contract of carriage and that, to be actionable, any delay must be “unreasonable”. The Court rejected this argument and held that the Convention always trumps general conditions. Article 26 of the Convention does not permit the carrier to relieve itself of liability by relying on other contractual provisions.
Finally, the Court rejected the defendant’s argument that the plaintiff’s damages for missing a billable business appointment in London (the plaintiff was a UK solicitor) were not compensable and held that the plaintiff was not seeking inconvenience damages (or trumped up mental anguish damages) but loss of earnings which formed a quantifiable economic loss and was therefore recoverable as a special damage claim within the Convention.
The plaintiff was awarded damages of just over $2,000 CDN, an amount well within the Convention limit.
Balogun v. Air Canada, [2010] O.J. No. 663
(S.C.J. – Small Claims)