# Decision No. 309-C-A-2010

July 21, 2010

July 21, 2010

COMPLAINT by Karen Kipper against WestJet.

File No. M4120-3/09-07891

## INTRODUCTION AND ISSUES

[1] Karen Kipper filed a complaint with the Canadian Transportation Agency (Agency) alleging that WestJet damaged her baggage on a flight from Toronto, Ontario to Winnipeg, Manitoba on November 28, 2009, that certain terms and conditions set out in a "Baggage Information" sheet which WestJet provided to Ms. Kipper do not form part of WestJet's Local Domestic Tariff (tariff), and that these terms and conditions are unreasonable.

[2] During the pleadings, WestJet submitted for the Agency's consideration a proposed tariff provision respecting this matter.

[3] In its Decision No. LET-C-A-33-2010, the Agency directed Ms. Kipper to provide to the Agency and WestJet, along with witness statements, photographic evidence of the damage to her baggage to substantiate her claim, or alternatively to allow WestJet to inspect the baggage.

[4] Ms. Kipper subsequently provided photographic evidence of the damage to her baggage.

[5] The statutory extracts relevant to this Decision are set out in Appendix A.

[6] There are three issues:

1. Did WestJet apply terms and conditions not appearing in its tariff, contrary to subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)?
2. Is the principle established in the Montreal Convention (Convention) that to be exempt from liability for damage to baggage there must be a causal relationship between the damage to the baggage and an inherent defect, quality or vice of the baggage equally applicable to domestic carriage, and, in the affirmative, are the terms and conditions set out in WestJet's "Baggage Information" sheet and in the carrier's proposed tariff provision consistent with this principle?
3. Is WestJet responsible for the damage caused to Ms. Kipper's baggage?

[7] As indicated in the reasons that follow, the Agency finds that:

• in exempting itself from liability for "normal wear and tear" to baggage, WestJet has applied terms and conditions of carriage that are not set out in its tariff, contrary to subsection 67(3) of the CTA;
• the principle established in the Convention that to be exempt from liability for damage to baggage there must be a causal relationship between the damage to the baggage and an inherent defect, quality or vice of the baggage is equally applicable to domestic carriage, and the terms and conditions set out in WestJet's "Baggage Information" sheet and in the carrier's proposed tariff provision are inconsistent with this principle; and
• given the evidence filed by Ms. Kipper to support the damage to her baggage, and the failure by WestJet to provide any evidence to dispute its responsibility for the damage, WestJet is responsible for the damage to Ms. Kipper's baggage.

## PRELIMINARY MATTER

[8] WestJet provided a witness statement from an employee who was on duty at WestJet's baggage counter at the time that Ms. Kipper reported the damage to her baggage. Among other matters, this witness statement included a reference to the person who accompanied Ms. Kipper to the baggage counter.

[9] Ms. Kipper filed a notice of motion dated April 4, 2010 in response to this witness statement, requesting that such statement be expunged from the record, or that she be permitted to address the statement in a certain fashion.

[10] The Agency considers that the statements referencing the person who accompanied Ms. Kipper to the baggage counter are irrelevant to the inquiry and will not be considered. The Agency is of the opinion, therefore, that no further consideration is required with respect to Ms. Kipper's notice of motion.

## SUBMISSIONS

[11] Ms. Kipper submits that when she reported the damage to her baggage at WestJet's baggage service desk on November 28, 2009, she and the WestJet representative mutually agreed that the baggage was dented. WestJet advised Ms. Kipper that it is not responsible for this type of damage and provided her with a photocopy of a sheet entitled "Baggage Information" listing exclusions from liability, including for "normal wear and tear".

[12] Ms. Kipper reviewed WestJet's tariff provisions and did not find the information contained on the "Baggage Information" sheet with respect to "normal wear and tear" or dents, nor was she able to find any exclusion from liability that might justify the content of the information sheet.

[13] Ms. Kipper maintains that, in exempting itself from liability for "normal wear and tear" to baggage, WestJet applied terms and conditions that were not set out in its tariff, contrary to subsection 67(3) of the CTA.

[14] Ms. Kipper submits that the broad interpretation of the phrase "normal wear and tear" by WestJet is unreasonable. Ms. Kipper states that there is nothing objectionable in terms and conditions that exempt a carrier from liability for "normal wear and tear" of checked baggage, such as dust, but that the phrase was artificially and forcefully extended to encompass virtually all types of damage that may occur to a piece of checked baggage.

[15] Ms. Kipper maintains that WestJet's position is inconsistent with principles previously formulated by the Agency, including in Decision No. 227-C-A-2008 (Kelly McCabe v. Air Canada), wherein the Agency stated that "[...] if a carrier accepts checked baggage for transportation and the checked baggage is under the care and control of the carrier, the carrier assumes liability for the baggage in the event of loss and damage, [...]".

[16] Ms. Kipper also refers to Decision No. 208-C-A-2009(Gábor Lukács v. Air Canada), in which the Agency found tariff rules of Air Canada similar to those described in WestJet's "Baggage Information" sheet to be unreasonable. Ms. Kipper notes that the Decision involved international tariffs and the Convention, but that the "dicta" of such Decision equally apply to domestic carriage.

[17] WestJet acknowledges that any terms and conditions used in the "Baggage Information" sheet that are in addition to those terms found in the tariff are confusing. WestJet submits that neither its interpretation of "normal wear and tear" is unreasonable nor is it required to repair or pay for all repairs to Ms. Kipper's baggage.

[18] WestJet further acknowledges that the tariff should reflect the terms and conditions of any "Baggage Information" sheet that is provided to a guest. WestJet states that the "Baggage Information" sheet is another important tool to ensure that the terms and conditions are put before the guest in an open manner. WestJet proposes to change its tariff to include the following provision:

Damage to exterior elements of checked baggage during baggage handling may occur.

WestJet does not compensate for or repair normal wear and tear of baggage. In its sole discretion, the following may be considered normal wear and tear and not compensated for: clips, dents, dirt/dust, exterior pockets, fabric snags, feet, handles (including exterior tube and retractable pull handles), identifiers (e.g. decals), missing straps, nametags, nicks, ornamentation (e.g. keychains, locks), scratches, scuffs associated with belts and wheels from conveyance systems, wheels, zippers (including zipper tabs).

[19] WestJet acknowledges the importance of tariffs which clearly state the carrier's policies. However, the circumstances affecting its liability are many and it is not possible to prescribe the consequences of every variation in a tariff. The carrier maintains that the best that can be done is to lay down a basic obligation and leave it to common sense, and ultimately to the Agency or the courts to determine what action or compensation is appropriate in all of the facts of the case.

[20] WestJet states that "[...] when a guest decides to check baggage with a carrier, there are several stakeholders involved in loading and unloading baggage [...]", such as the Canadian Air Transport Security Authority (CATSA) and baggage handlers. WestJet submits that "[t]he fact the carrier accepts liability for all damaged baggage given these circumstances is a considerable burden already, to expect the complainant to encumber the carrier with the likes of ?normal wear and tear' to a piece of checked baggage as it goes through this complex system seems at best unreasonable."

[21] WestJet states that it is reasonable to expect some level of wear and tear when checking baggage with the carrier, and that WestJet is justified in refusing to compensate for such wear and tear or to repair the baggage.

[22] WestJet submits that it accepts the photographs submitted by Ms. Kipper as constituting the best evidence of the state of her baggage when it was delivered to her by the carrier.

## ANALYSIS AND FINDINGS

### 1. Did WestJet apply terms and conditions not appearing in its tariff, contrary to subsection 67(3) of the CTA?

[23] Ms. Kipper states that by using the "Baggage Information" sheet, WestJet failed to apply its tariff correctly and/or applied terms and conditions that are not set out in its tariff, contrary to subsection 67(3) of the CTA.

[24] WestJet's "Baggage Information" sheet with respect to "normal wear and tear" provides in part, that:

Checked baggage external attributes: Exterior elements with damage attributable to normal baggage handling known as "Normal Wear and Tear" is typically not compensated by WestJet.

### What is "Normal Wear and Tear" anyway?

Damage to exterior elements of checked baggage exposed to the rigors of baggage handling such as: scuffs associated with belts and wheels from conveyance systems, scratches, nicks, dents, dirt/dust, fabric snags, missing straps, feet, clips, wheels, nametags, exterior pockets, ornamentation such as key chains, locks and identifiers such as decals, zippers including zipper tabs, all handles including exterior tube and retractable pull handles.

[25] Rule 6.1 of WestJet's tariff currently provides that:

Unless stated to the contrary herein, and to the extent permitted by law, the Carrier's Passenger Liability in respect of the provision of any Domestic Service or Charter Service, howsoever caused, including negligence of the Carrier, shall not exceed the limits set out in this sub-section, as follows:

[...]

d. for damage to goods (including Cargo) in the Carrier's charge or otherwise for damages suffered or sustained due to the loss of or delay in delivering the goods, the lesser of the actual value of such proven damages, or losses and the sum of $250.00 per passenger, per incident. Note - this limitation does not apply to mobility aids. [26] The Agency has reviewed WestJet's tariff and finds that it does not contain any provisions reflecting the contents of the "Baggage Information" sheet distributed by WestJet to its passengers. ### 2. Is the principle established in the Convention that to be exempt from liability for damage to baggage there must be a causal relationship between the damage to the baggage and an inherent defect, quality or vice of the baggage equally applicable to domestic carriage, and, in the affirmative, are the terms and conditions set out in WestJet's "Baggage Information" sheet and in the carrier's proposed tariff provision consistent with this principle? [27] The Agency stated in Decision No. 181-C-A-2007 (Stephen Pinksen v. Air Canada) that the examination of the terms of international instruments as a persuasive authority in interpreting domestic rules has been deemed a valid tool by the majority of the Supreme Court of Canada and, therefore, the Agency can look to the Convention governing international travel for guidance. [28] Ms. Kipper states that there is nothing objectionable in terms and conditions that exempt a carrier from liability for "normal wear and tear" of checked baggage, such as dust. [29] Ms. Kipper submits that in the present case, however, the scope of the phrase "normal wear and tear" was artificially and forcefully extended to encompass virtually all types of damage that may occur to a piece of checked baggage, and, as such, is unreasonable. [30] WestJet maintains that it should not be liable for "normal wear and tear" to baggage given that baggage is normally subject to such "normal wear and tear" during carriage, and that several parties are involved in this carriage. [31] In Decision No. 208-C-A-2009 (Gábor Lukács v. Air Canada), the Agency found that "[...] to exempt a carrier from liability for damage to baggage under Article 17(2) of the Convention, there must be a causal relationship between the damage and an inherent defect, quality or vice of the baggage." The Agency finds that this principle is equally applicable to the present matter, and that WestJet's "Baggage Information" sheet and proposed tariff provision fail to respect this principle. ### 3. Is WestJet responsible for the damage caused to Ms. Kipper's baggage? [32] In response to Decision No. LET-C-A-33-2010, Ms. Kipper provided photographic evidence of the damage to her baggage. WestJet advised that it accepts the photographs submitted by Ms. Kipper as representing the best evidence of the state of her baggage when it was delivered to her by WestJet. [33] WestJet submits that when a guest decides to check baggage with a carrier, there are several stakeholders involved in handling the baggage. The baggage may be subject to handling from various parties, including airport security, and from non-carrier employees contracted to facilitate baggage handling. WestJet states that guests should expect some level of wear and tear when checking luggage and that to encumber a carrier with the likes of "normal wear and tear" to a piece of checked baggage as it goes through this complex system is unreasonable. [34] In Decision No. 227-C-A-2008 (Kelly McCabe v. Air Canada), the Agency held that: [...] if a carrier accepts checked baggage for transportation and the checked baggage is under the care and control of the carrier, the carrier assumes liability for the baggage in the event of loss and damage, [...]. [35] The Agency accepts Ms. Kipper's evidence that the damage to her baggage occurred while in WestJet's care and control. WestJet has failed to provide any evidence that establishes that it was not responsible for such damage or that would establish that there was an inherent defect, quality or vice of the baggage that was causally linked to the damage. The Agency therefore finds that WestJet is responsible for the damage to Ms. Kipper's baggage and that compensation is warranted for such damage. ## CONCLUSION [36] Based on the above findings, the Agency concludes that: • in applying the conditions appearing in its "Baggage Information" sheet, including the provision disclaiming liability for "normal wear and tear" to baggage, WestJet has applied terms and conditions of carriage that are not set out in its tariff, contrary to subsection 67(3) of the CTA; and • WestJet's proposed tariff provision and "Baggage Information" sheet are inconsistent with the principle that to be exempt from liability for damage to baggage there must be a causal relationship between the damage to the baggage and an inherent defect, quality or vice of the baggage. [37] Pursuant to section 67.1 of the CTA, the Agency therefore directs WestJet, within 45 days of the date of this Decision, to fully compensate Ms. Kipper for the cost of repairing her baggage, up to the maximum amount of$250.00, as provided for in the carrier's tariff. WestJet shall advise the Agency when this compensation is tendered.

The Agency also reminds WestJet to respect subsection 67(3) of the CTA.

## Membres

• Jean-Denis Pelletier, ing.
• Geoffrey C. Hare

## Appendix A

#### Subsection 67(3)

The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.

#### Section 67.1

If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

1. apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;
2. compensate any person adversely affected for any expenses they incurred as a result of the licensee's failure to apply a fare, rate, charge or term or condition of carriage that was set out in its tariffs; and
3. take any other appropriate corrective measures.

## Member(s)

Geoffrey C. Hare
Jean-Denis Pelletier, P.Eng.
Date modified: