Decision No. 18-C-A-2018
APPLICATION by Fady El Mohandes against Air Canada also carrying on business as Air Canada rouge and as Air Canada Cargo (Air Canada), and Swiss International Air Lines Ltd. also carrying on business as Swiss (Swissair).
 Fady El Mohandes filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding his delayed baggage while travelling from Toronto, Ontario, Canada to Zurich, Switzerland, via Dublin, Ireland on November 17, 2016.
 Mr. El Mohandes is seeking compensation for the expenses that he incurred due to his delayed baggage.
 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, 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 regards to liability of carriers respecting delayed 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 Mr. El Mohandes?
 For the reasons set out below, the Agency finds that Air Canada did not properly apply the terms and conditions set out in its Tariff. Therefore, the Agency orders Air Canada to compensate Mr. El Mohandes in the amount of CAN $1,264.80. This amount is to be paid as soon as possible and no later than April 19, 2018.
 Mr. El Mohandes booked a round trip flight from Toronto to Zurich with a connection in Dublin. A technical issue on Mr. El Mohandes’ November 17, 2016 outbound Air Canada flight to Dublin required that the aircraft make an emergency landing in Halifax, Nova Scotia, Canada. As a result, Mr. El Mohandes’ flight was delayed, and his connection time in Dublin was reduced to 20 minutes. Although Mr. El Mohandes was able to board his Swissair flight to Zurich, his checked baggage did not make it on to the aircraft. As a result of the delay in receiving his baggage, Mr. El Mohandes claimed damages for the cost of replacement items purchased while in Zurich.
 The pleadings were opened on November 28, 2017. Air Canada filed its answer on December 11, 2017. Swissair did not file an answer. Mr. El Mohandes filed his reply on December 18, 2017.
 Swissair was identified in the opening pleadings letter because Mr. El Mohandes did not clearly identify a respondent in the application form, although references were made to both Air Canada and Swissair in the description of events due to Mr. El Mohandes’ interline ticket. Swissair did not file an answer to the application; however, Air Canada’s answer indicates that the delay occurred as a result of a mechanical issue on Flight No. AC1908, which reduced the connection time in Dublin. Therefore, the issue will be limited to whether or not Air Canada properly applied its Tariff.
 Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
 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:
- take the corrective measures that the Agency considers appropriate; and,
- 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.
 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.
 Rule 105 (C)(1) of the Tariff states the following, in regards to Limitations of liability:
(1) Where the Montreal Convention applies, the limits of liability are as follows:
(b) In respect of destruction, loss of, or damage or delay to baggage, 1,131 Special Drawing Rights (approximately EUR 1,357; US $1,663) per passenger in most cases.
 Article 19 of the 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 and 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 of the Montreal Convention limits the liability for damage due to delayed baggage to 1,131 Special Drawing Rights. However, paragraph 5 of this Article indicates the circumstances under which this limitation does not apply:
The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment.
POSITIONS OF THE PARTIES AND FINDINGS OF FACT
Mr. El Mohandes’ position
 Mr. El Mohandes states that his business attire and business documents for a business meeting in Zurich were in his delayed baggage. Mr. El Mohandes explains that when he arrived at the Zurich Airport, on November 18, 2016, the Swissport agent, responsible for delivering Swissair’s delayed baggage, informed him that there was no information regarding the whereabouts of his baggage. Mr. El Mohandes states that, considering the circumstances of the unknown location of his baggage, he went to a department store (the same day) to purchase a suit, a shirt, a tie and leather shoes for his meeting, which cost him CHF 2,680.00 (approximately CAN$3,570.24).
 The next day, on November 19, 2016, Mr. El Mohandes received a call informing him that his baggage had been located and that it would be delivered to him that evening,. Mr. El Mohandes states that he had a meeting that evening at 8:00 p.m., and as he had not shaved for 48 hours, he went to a store and purchased an electric razor (at 7:11 p.m.), which cost him CHF 449.90 (approximately CAN$598.15). He states that he had someone else accept his baggage on his behalf as he was at his meeting, and that his baggage was delivered that night at around 10:30 p.m., approximately 30 hours after his landing in Zurich.
 Mr. El Mohandes is seeking a reimbursement for his expenses in the amount of CHF 3129.90 (approximately CAN$4,169.59).
Air Canada’s position
 Air Canada does not contest that Mr. El Mohandes’ baggage was delayed and that he is entitled to be compensated for interim out-of-pocket expenses associated with this delay in accordance with the Montreal Convention. Air Canada argues, however, that it is not its responsibility to bear the expense of Mr. El Mohandes’ decision to purchase a CHF449.90 electric razor at 7:11 p.m., while he had been informed that his baggage would be delivered to him that evening between 8:00 p.m. and 10:00 p.m., pointing out that a simple manual razor or even a visit to the local barbershop would have sufficed. Air Canada submits that Mr. El Mohandes was contacted at 3:12 p.m. on November 19, 2016, and advised that his baggage would be delivered to him that evening between 8:00 p.m. and 10:00 p.m., and that someone signed for his baggage at 8:33 p.m.
 Air Canada argues that Mr. El Mohandes could have gone to a less expensive store to purchase his suit, or even purchase less luxurious items in the same store. Air Canada has produced a webpage from the store where Mr. El Mohandes purchased his suit, showing suits valued at between CHF 860 and CHF 1,050, which is much less than the CHF 2,680 that Mr. El Mohandes paid for his replacement clothing. Air Canada argues that it is a principal in law that plaintiffs have the obligation to mitigate their damages and to take reasonable steps to minimize their costs. Air Canada submits that a good faith alternative would have been to purchase cheaper clothing or to remain within the Montreal Convention limits. Air Canada also questions the need to purchase these replacement items, arguing that Mr. El Mohandes has failed to provide details regarding the business meeting.
 Air Canada submits that it has already compensated Mr. El Mohandes in the amount of CAN$390 and that Lufthansa (Swissair is a subsidiary of the Lufthansa Group) has compensated him CHF 320 (approximately CAN$413.90), for a total of CAN$803.90. Air Canada argues that Mr. El Mohandes should not be compensated any further. Air Canada argues that, in the alternative, any additional compensation must be limited to CAN$1,250.70, as this sum represents the remaining balance between the claimed amount and the limit of 1,131 Special Drawing Rights (SDR) [(about CAN$2,054.60]) stipulated in Article 22 of the Montreal Convention. Air Canada argues that in the absence of proof of willful misconduct, the Agency cannot order damages over and above the Montreal Convention limit.
Mr. El Mohandes’ reply
 Mr. El Mohandes submits that he was not given an actual timeframe for the delivery of his bag and that someone else accepted it on his behalf. He claims that he waited until the last minute to purchase a razor, and then went out at 6:30 p.m. to purchase one for an appointment he had at 8:00 p.m. He states that he attempted to mitigate damages by not buying a razor on the same day he purchased a suit. Mr. El Mohandes argues that the liability limits for missing baggage in the Montreal Convention should not apply in this case because the damages that he suffered were due to negligence on Air Canada’s part. He states that Air Canada has yet to prove that the diversion of his initial flight could not have been avoided by proper maintenance. He argues that in the absence of this proof, the Montreal Convention sets no limits to the damages.
 In his reply, Mr. El Mohandes revised the amount of compensation that he is seeking to CAN$3,390.00 to account for the compensation that he already received from Air Canada and Lufthansa (the owner of Swissair).
Findings of fact
 It is undisputed by the parties that Mr. El Mohandes’ baggage was delayed as a result of a mechanical issue on Flight No. AC1908, and that he needed to purchase items in the interim while awaiting the arrival of his baggage. The Agency accepts that Mr. El Mohandes had business attire and an electric razor in his baggage as per his evidence, and that he needed these items for a business meeting while in Zurich. The Agency also finds that Mr. El Mohandes purchased a suit, shoes, a shirt, and a tie for a total of CHF 2,680.00 (approximately CAN$3,570.24), as well as an electric razor at a cost of CHF 449.90 (approximately CAN$598.15), and that these represented the replacement of items from his baggage that had been delayed.
ANALYSIS AND DETERMINATIONS
 In accordance with a well-established principle on which the Agency relies when considering such applications, the onus is on the applicant to establish, 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.
 Rule 105(B)(5) of the Tariff states that for the purpose of international carriage, Article 19 of the Montreal Convention establishes liability for damages incurred as a result of delayed baggage. Article 19 states that the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage and cargo. Rule 105 (C)(1) the Tariff sets out the limitations of liability in respect of destruction, loss of, or damage or delay to baggage, at 1,131 SDR (approximately CAN$2,068.70) per passenger in most cases.
 A review of the receipts provided by Mr. El Mohandes indicates that the total cost of the replacement clothing was CHF 2,680, which includes CHF 1,495 for a suit. Air Canada argues that this is excessive, and provided evidence that Mr. El Mohandes could have purchased less expensive items such as a less expensive suit from the same store. Air Canada provided evidence from the department store’s website showing suits for sale at a price of between CHF 840 and CHF1050. Air Canada also provided options for cheaper shoes, ties, and shirts. A sample of what Air Canada considered appropriate costs for a business outfit include: suit CHF 1050, shoes CHF 179, tie CHF 109, and shirt CHF 119, which, including an 8% tax, would be a total of CHF 1,573.56. Even accepting the argument that Mr. El Mohandes should have purchased one of the less expensive suits suggested by Air Canada, the total cost for replacement clothing would still have been CHF 1,573.56. Considering that the maximum liability under the Montreal Convention is 1,131 SDR, the equivalent of CHF 1,575.87, that this amount is more or less equivalent to what Air Canada suggests should have been spent by Mr. El Mohandes had he purchased less expensive items at the department store where he replaced his clothing, and that this amount is reasonable in the circumstances, the Agency finds that Mr. El Mohandes is entitled to the maximum amount of compensation for delayed baggage under the Montreal Convention, less the amount of compensation that he has already received.
 Given the Agency’s finding that the cost of the replacement clothing is equivalent to the maximum amount of liability established by the Montreal Convention, the Agency need not consider the expense incurred by Mr. El Mohandes for the purchase of a replacement electric razor.
 Mr. El Mohandes argues that according to Article 22 of the Montreal Convention, the maximum amount of liability would not apply if it was due to a reckless act or omission of the carrier, in this case, its failure to maintain its aircraft. However, there is no evidence that Air Canada or its agents acted with the intent to cause damage or were reckless as defined by this provision. Therefore, there is no basis upon which to conclude that the limit of liability set out in the Montreal Convention should not apply.
 The Agency therefore finds that Mr. El Mohandes has established, on a balance of probabilities, that Air Canada did not properly apply the terms and conditions set out in its Tariff with regard to liability of carriers respecting baggage, as required by subsection 110(4) of the ATR.
The Agency orders Air Canada, pursuant to paragraph 113.1(b) of the ATR, to compensate Mr. El Mohandes in the amount of CAN$1,264.80, representing the maximum liability under the Montreal Convention ($2,068.70), less compensation already received ($803.90). This amount is to be paid as soon as possible and no later than April 19, 2018.