Decision No. 353-C-A-2012

September 10, 2012

COMPLAINT by Sampa Shetty against Air Canada.

File No.: 
M4120-3/12-02968

INTRODUCTION AND ISSUE

Introduction

[1] Sampa Shetty filed a complaint with the Canadian Transportation Agency (Agency) concerning Air Canada’s refusal to reimburse clothing purchases she made related to a baggage delay while travelling from Toronto to Timmins, Ontario.

Issue

[2] Did Air Canada properly apply the terms and conditions set out in its Domestic Passenger General Rules Tariff No. CDGR-1 (Tariff) relating to baggage liability as required by subsection 67(3) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA)?

Conclusion

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

  1. Air Canada did not properly apply the terms and conditions of carriage relating to baggage liability set out in the Tariff;
  2. Mrs. Shetty is entitled to compensation in the amount of $800.52. As Air Canada previously gave her $100, she is now entitled to compensation in the amount of $700.52.

BACKGROUND

[4] On October 3, 2011, Mrs. Shetty travelled with Air Canada from Toronto to Timmins on Flight AC7833. She arrived in Timmins at approximately 12:30 a.m. on October 4, 2011. As her baggage was missing, Air Canada provided Mrs. Shetty with a Delayed Baggage Tracing form with a tracking number to allow her to follow up on the status of her missing baggage. Her baggage was delivered to her hotel at approximately 2:00 p.m. on October 4, 2011.

[5] Mrs. Shetty purchased replacement items valued at $800.52, and requested compensation from Air Canada for that amount. In support of her claim for compensation, she provided the Agency with a copy of the receipts for her purchases. In response, Air Canada provided her with compensation of $100.

RELEVANT STATUTORY AND TARIFF EXTRACTS

[6] The extracts relevant to this Decision are set out in the Appendix.

POSITIONS OF THE PARTIES

[7] Mrs. Shetty submits that she went to Timmins to attend daily meetings related to her work and an evening dinner on October 4, 2011. She advises that when she arrived at her hotel after midnight on October 4, 2011, she did not have her baggage as it did not arrive with her in Timmins. She contends that in the morning, she waited until 9:00 a.m., hoping that her baggage would arrive, before going to the nearest drugstore to purchase some toiletries. Mrs. Shetty adds that when she returned to her hotel at around 9:45 a.m., and discovered that her baggage had still not arrived, she cancelled and rescheduled her morning appointments and headed to a store to shop for clothes and makeup products. Mrs. Shetty asserts that she had to get clothes for her afternoon appointments and evening dinner and adds that she only bought the clothing that was suitable for these events. Mrs. Shetty maintains that after shopping, she did not go back to the hotel as she had to rush to her appointments, and that she did not arrive at her hotel until 10:00 p.m.

[8] Air Canada submits that it is not its responsibility to bear the expense of Mrs. Shetty’s decision to purchase non-essential products and an unreasonable amount of clothing considering the amount of time her baggage was delayed. Air Canada asserts that, in law, plaintiffs have the obligation to mitigate their damages and to take reasonable steps to minimize their costs. Air Canada argues that the conditions for reimbursement of interim out-of-pocket expenses in the case of delayed baggage, as set out in Rule 230AC of the Tariff, remain subject to the general principles of law, such as a plaintiff’s obligation to mitigate damages suffered. In this regard, Air Canada submits that Mrs. Shetty did not take reasonable steps to mitigate her damages as within a period of 12 hours, she spent a total of $800.52. Air Canada also notes that, given the time she received her baggage, Mrs. Shetty could have returned the items which she had purchased.

[9] Air Canada submits that although it did not contravene its Tariff, as a gesture of goodwill, it is ready to give Mrs. Shetty $200, in addition to the $100 it gave her in November 2011. Air Canada maintains that $300 covers reasonable expenses incurred.

[10] Mrs. Shetty advises that if she had been assured that her baggage would be delivered to her at 2:00 p.m. on October 4, 2011, she would not have bought dinner clothes, a night dress and sweat pants. She adds that as she was not sure if she was going to get her baggage the same day or in 10 days, she had to purchase at least a night dress, and pants to go out.

ANALYSIS AND FINDINGS

[11] The Agency notes that Tariff Rule 230AC, which sets out Air Canada’s liability for baggage, provides that liability for loss of, damage to, or the delay in delivery of baggage shall not be more than $1,500, unless a higher value is declared in advance and the applicable charges are paid.

[12] Mrs. Shetty submitted a claim totalling $800.52, which includes expenditures for clothes to attend daily appointments and an evening dinner, as well as toiletries, hair care and skin care products. The Agency notes that Mrs. Shetty provided evidence to support the purchase of the items.

[13] The Agency is of the opinion 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, Mrs. Shetty provided a reasonable explanation for the purchases she made. The Agency accepts that at the time she went shopping to buy replacement items, Mrs. Shetty could not be certain when she would get her baggage back.

[14] The Agency does not accept Air Canada’s argument that Mrs. Shetty purchased non-essential products and an unreasonable amount of clothing considering the amount of time her baggage was delayed. In this regard, the Agency is satisfied that Mrs. Shetty mitigated her damages by limiting her expenses to replacement clothing for the appointments she had in the afternoon and for the dinner she had to attend in the evening. Therefore, the Agency finds that Mrs. Shetty’s expenditures of $800.52 represent a reasonable interim expense. The Agency notes that Air Canada has already provided Mrs. Shetty with compensation of $100.

[15] In light of the foregoing, the Agency finds that in failing to compensate Mrs. Shetty in accordance with Rule 230AC, Liability – Baggage, of the Tariff, Air Canada has contravened subsection 67(3) of the CTA.

CONCLUSION

[16] The Agency, pursuant to paragraph 67.1(b) of the CTA, orders Air Canada, within 30 days of the date of this Decision, to compensate Mrs. Shetty an amount of $700.52 and to advise the Agency when Air Canada has compensated Mrs. Shetty.


APPENDIX TO DECISION NO. 353-C-A-2012

RELEVANT STATUTORY AND TARIFF EXTRACTS

Canada Transportation Act, S.C., 1996, c. 10, as amended

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 appropriate corrective measures.

Tariff provision

RULE 230AC, LIABILITY – BAGGAGE

(A)(1) (Applicable for transportation solely within Canada only and not in conjunction with any international travel.) Liability for the loss of, damage to, or the delay in delivery of, baggage or other personal property shall not be more than 1500 dollars per passenger unless a higher value is declared in advance and charges are paid pursuant to carriers regulations as defined in paragraph (C). In the event, the liability of the carrier shall be limited to such higher declared value. In no case shall the carriers liability exceed the actual loss suffered by the passenger. All claims are subject to proof of amount of loss. These limitations shall also apply to baggage or other personal property (as previously defined in Rule 195) accepted by the carrier for temporary storage at a city or airport office or elsewhere before or after the passengers trip.

Member(s)

Jean-Denis Pelletier, P.Eng.
Raymon J. Kaduck
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