Decision No. 665-C-A-2005
November 4, 2005
IN THE MATTER OF a complaint by Arthur Caldicott against Jazz Air Limited Partnership, as represented by its general partner, Jazz Air Partner Inc. carrying on business as Air Canada Jazz, that his laptop computer was damaged on Air Canada Jazz's Flight No. AC8076 from Victoria, British Columbia, to Vancouver, British Columbia on June 28, 2004.
File No. M4370/04-50383
 On August 20, 2004, Arthur Caldicott filed with the Air Travel Complaints Commissioner (hereinafter the ATCC) the complaint set out in the title. Given that the parties were unable to reach a satisfactory agreement despite the intervention of the ATCC, in May 2005, the matter was referred to the Canadian Transportation Agency (hereinafter the Agency) for its consideration.
 On May 11, 2005, both Mr. Caldicott and Jazz Air Limited Partnership, as represented by its general partner, Jazz Air Partner Inc. carrying on business as Air Canada Jazz (hereinafter Jazz) were advised of the Agency's jurisdiction in this matter. In that same letter, Mr. Caldicott was requested to advise in writing whether he wished to pursue the matter formally before the Agency, and, in the event that he chose to do so, both parties were asked if they would agree to have the comments they had filed with the ATCC considered as pleadings before the Agency.
 In a letter dated May 16, 2005, Jazz agreed that the comments it had previously filed should be considered as pleadings before the Agency and asked that Rule 95AC(F) of its domestic tariff, which the carrier felt would also apply in this case, be added to its pleadings.
 In an e-mail dated May 23, 2005, Mr. Caldicott confirmed that he wished to pursue the matter formally before the Agency and agreed to have his comments already on file considered as pleadings before the Agency. The file was therefore referred to the Agency on that date.
 On May 25, 2005, Mr. Caldicott was provided ten (10) days within which to file his comments concerning the additional information filed by Jazz. On June 7, 2005 Mr. Caldicott filed comments concerning Rule 95AC(F) of Jazz's tariff.
 Pursuant to subsection 29(1) of the Canada Transportation Act, S. C., 1996, c. 10 (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the statutory deadline until November 4, 2005.
 The issues to be addressed are:
- Did Jazz apply the terms and conditions relating to the limitations and exclusion of liability for carry-on baggage specified in its Canadian Domestic General Rules Tariff, CDGR-1 (hereinafter the tariff) as required by subparagraphs 107(1)(n)(x) and (xi) of the Air Transportation Regulations, SOR/88-58, as amended (hereinafter the ATR).
- Was there negligence on the part of the carrier?
- Does the limitation of baggage liability apply under the circumstances?
 The facts leading to the present application are uncontested.
 On June 28, 2004, Mr. Caldicott travelled from Victoria to Vancouver on Jazz Flight No. AC 8076. Prior to boarding, Mr. Caldicott placed his laptop computer (hereinafter laptop) on the flight's Skycheck cart. Mr. Caldicott retrieved his laptop upon arrival in Vancouver and when he attempted to use it at the airport, found that it had been damaged. He immediately filed a damaged baggage claim with the carrier.
POSITIONS OF THE PARTIES
 Mr. Caldicott claims that his laptop had been fully functional in Victoria. He states that, upon his arrival in Vancouver and attempting to use his laptop at the airport, he discovered that the screen on his laptop had been shattered, and that the keyboard and the battery compartment cover had lifted off the chassis. Mr. Caldicott adds that his laptop worked erratically for two to three weeks after his flight before failing completely. Mr. Caldicott maintains that the damage to his laptop was caused by Jazz's negligence.
 Mr. Caldicott submits that his laptop was damaged beyond repair, and is seeking $1,784.86 in compensation for the replacement laptop that he purchased.
 Jazz advises that it is not liable for payment of compensation as a result of any damage to Mr. Caldicott's laptop. The carrier contends that it was Mr. Caldicott's choice to place his laptop on the Skycheck cart and adds that, as per its tariff, Jazz does not agree to carry fragile articles such as laptops. Jazz adds that passengers are not required to place articles on the Skycheck cart, which is placed near the aircraft for passengers' convenience. The carrier states that a passenger's ticket or itinerary is used to provide advice to passengers concerning the terms and conditions of travel, including the carrier's liability.
 In support of its position, Jazz cites a provision of its tariff that states that it is not liable for damage unless the damage was caused solely by its negligent handling. In its defense, Jazz also cites a second provision of its tariff that states that Skycheck baggage is subject to all the same limitations and regulations as any carry-on baggage.
 Mr. Caldicott states that he was unaware of any limitation of liability and that the carrier's personnel failed to inform him of any such limitation when he completed and filed his claim with the carrier. Mr. Caldicott also states that Jazz encourages passengers to utilize the Skycheck service, and contends that the carrier's personnel discourage passengers from taking carry-on baggage on board the aircraft.
ANALYSIS AND FINDINGS
 In making its findings, the Agency has carefully considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined Jazz's baggage regulations and the limitation of liability and exclusion of liability applicable to carry-on baggage, as set out in Jazz's tariff in effect at the time of the incident.
Applicable legislative and regulatory provisions
 Carriers operating domestic air services are free to establish their own terms and conditions of carriage provided that they are set out in a tariff as required by subsection 67(1) of the CTA. Pursuant to paragraph 107(1)(n) of the ATR, tariffs shall contain the terms and conditions of carriage clearly stating the air carrier's policy in respect of, inter alia:
- refusal to transport passengers or goods;
- limits of liability respecting passengers and goods; and
- exclusions from liability respecting passengers and goods.
 Section 55 of the CTA defines a tariff as a schedule of fares, rates, charges and terms and conditions of carriage applicable to an air service or other incidental services.
 Subsection 67(1) of the CTA provides, among other matters, that the holder of a domestic licence shall publish and make available for public inspection its tariffs for the domestic service it offers.
Jazz's tariff provisions
 The following are excerpts from Jazz's tariff in effect at the time of the incident. As an affiliate of Air Canada, Jazz uses the same tariff as its parent company. Therefore, for tariff purposes, all references in the tariff to "AC" (Air Canada) apply equally to Jazz.
Rule 190AC - ACCEPTANCE OF BAGGAGE - GENERAL
CONDITIONS OF ACCEPTANCE
(A) General Conditions of AcceptanceAC will accept for transportation as baggage, such personal property as is necessary or appropriate for the wear, use, comfort, or convenience of the passenger for the purpose of the trip, subject to the following conditions:
(1) All baggage is subject to inspection by AC; however, AC shall not be obligated to perform inspection. AC will refuse to transport or will remove at any point baggage that the passenger refuses to submit for inspection.
(2) AC has the right to refuse to transport baggage on any flight other than the one carrying the passenger.
(B) QUANTITY AND/OR SIZE MAXIMUMS
...(3) (A) AC will refuse to accept property for transportation which is not suitably packaged to withstand ordinary handling; whose size, weight, or character renders it unsuitable for transportation on the particular aircraft which is to transport it; or which cannot be accommodated without harming or annoying passengers.
(B) AC does not agree to carry in checked baggage or when otherwise placed in the care of the carrier, money, jewelry, silverware, negotiable papers, securities or other valuables, computers, cameras, cellular phones, business documents, samples, liquids, perishables or prescription drugs.
Rule 205AC CHECKED AND CARRY-ON BAGGAGE
Passengers may check baggage for carriage in the cargo compartment of the aircraft and/or may carry baggage on board the aircraft subject to the provisions in paragraph(s) (A) and (B) below. The suitability of baggage, as to weight, size, and character, to be carried in the passenger compartment of the aircraft will be determined by the carrier.
BAGGAGE, CARRY ON
(C) Carry-on Baggage
When baggage is carried on board the aircraft it may be stored in carry-on compartments of aircraft so equipped or it must be retained in the passenger's custody and stored under a seat or in an overhead compartment approved for the carriage of such baggage. Carry-on baggage is subject to the following additional conditions.(1) ...
(B) Economy Class Fares
One standard bag maximum size 23cm X 40cm X 55cm (9in X 15.5in X 21.5in).
- One business or personal article with maximum size 16cm X 33cm X 43cm (6in X 13in X 17in) such as a purse (small), laptop, camera, walking stick, coat backpack or reading material.[emphasis added]
NOTE 1: Carry-on size includes wheels and baggage handles
NOTE 2: In the case of upgraded customers, whether paid or free, the allowances of the booked class prevail. No one piece of carry-on should exceed 22lbs (10kgs).
(2) Electronic Devices as carry-on Baggage:
The following articles may be carried on board provided they meet the carry on baggage rules with respect to the number of pieces, dimensions, weight and storage and provided they are not operated on board during flight: portable telephone systems (transmitter/receiver); portable television sets; transmitters (walkie talkies); electronic games; portable am/fm radios. Should any of these devices be operated or should any other device in the possession of a passenger cause interference to aircraft navigational systems, the pilot in command or someone appointed by him may require the device to be turned off or may cause the device to be removed from the possession of the passenger for the duration of the flight.
(3) Skycheck Baggage
Skycheck Baggage is a baggage service offered on AC's CL-65, Dash-8/100, Dash-8/300 and Beech aircraft, consisting of a special cart (positioned next to aircraft stairs) whereupon customer's simply drop their carry-on baggage prior to boarding the aircraft. Upon arrival, the Skycheck baggage is immediately removed from the aircraft and returned to customers as they disembark. Skycheck Baggage is subject to all the same limitations and regulations as any carry-on baggage. [Emphasis added]
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 (whether checked or otherwise delivered into the care of the carrier - subject to acceptance as defined in Rule 195) shall not be more than 1500.00 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 for 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.
(3) The carrier may disallow any claim for loss or damage which contains misrepresentations, including false statements concerning whether or not the passenger has made previous claims with AC or other carriers and/or where the passenger fails to have the carriers' baggage claim declaration form notarized. Carrier may also disallow claims when the passenger fails to provide proof of loss in the form of receipts of purchase.
(B) Exclusions from Liability
(3) Carrier shall not be liable for the loss, damage, or delay in delivery of a passenger's carry-on items or cabin baggage unless caused solely by the carrier's negligent handling or as a consequence of damage to aircraft. [Emphasis added]
Application of the tariff
 In responding to Mr Caldicott's complaint, Jazz took the position that it is exempt from liability as per its tariff and relies on Rules 190AC, 205AC(C)(3) and 230AC(B)(3) of the tariff in arguing that the combined effect of these provisions provides it with conclusive relief and protection from liability.
 The Agency notes that the carrier's assertion that it did not agree to carry Mr. Caldicott's laptop citing Rule 190AC(B)(3) (i.e., the Carrier does not agree to carry computers that are not checked baggage but are otherwise placed in the Carrier's care) does not stand up to close scrutiny. Despite Jazz's interpretation of its tariff Rule 190AC(B)(3), the carrier does accept laptops as carry-on baggage. On its on-line "Travel Info/Carry-on Baggage", Jazz lists prohibited items as well as items that may be considered as carry-on baggage. Laptops are not listed in the prohibited items but are specifically referred to as examples of carry-on baggage. As such, a reasonable person would expect that the term "computers" referred to in Rule 190AC(B)(3) of the tariff does not include "laptop" as referred to in Rule 205AC(C)(1)(B) of the tariff dealing with carry-on baggage.
 Accordingly, a reasonable passenger would expect the air carrier to accept objects such as laptops and, to those objects, apply the limits of liability and exclusions therefrom related to carry-on baggage. As such, the Agency finds that Jazz cannot hide behind Rule 190AC(B)(3) of its tariff to avoid liability. The Agency therefore dismisses this argument.
 Pursuant to Rule 205AC(C)(3) of the tariff, Skycheck baggage is subject to the same limitations and regulations as any carry-on baggage. While Rule 230AC(B)(3) of the tariff states that the carrier shall not be liable for the loss, damage, or delay in the delivery of a passenger's carry-on item, it is also clearly stated that Rule 230AC(B)(3) of the tariff will not protect Jazz if the damage resulted from its negligent handling.
Can it be determined that the damage was caused solely by the carrier's negligent handling?
 The general rule is that a plaintiff bears the burden of proof and is therefore required to show that the damage would not have occurred but for the negligence of the other party. The onus is thus on Mr. Caldicott to prove that the handling of his laptop by Jazz personnel amounted to negligence.
 In approaching the central issue of negligence, few will argue with the importance of setting out the proper test to be applied. On several occasions, courts have acknowledged that when negligence is called into question, the legal principle of res ipsa loquitur applies.
 The Supreme Court of Canada's decision in Shawinigan Carbide (1909), 42 S.C.R. 281, reviewed the doctrine of res ipsa loquitur and the burden of proof at trial. The proper approach is set out in MacDonald v. York County Hospital ( 3 O.R. 469) (affirmed  2 S.C.R. 825):
Many of the cases inadequately distinguish between an "evidential burden of proof" and the legal burden of proof. In an action for negligence the plaintiff has the legal burden of proving that the accident was caused by the defendant's negligence. This legal burden of proof does not shift. At the conclusion of the evidence the court must be satisfied that, on a balance of probabilities, the accident was caused by the negligence of the defendant; if not, the plaintiff's action fails. However, in the course of the trial the application of the doctrine of res ipsa loquitur may raise a prima facie inference against the defendant and unless he introduces some evidence to rebut this inference he will lose. This is the sense in which there can be said to be an "evidential burden of proof" on the defendant. As stated previously, the defendant can satisfy this evidential burden by introducing a reasonable explanation of the happening of the accident, that is consistent with the proven facts, and is as consistent with there being no negligence on his part as with the inference that there [sic] negligence. Res ipsa loquitur does not have the effect of shifting the legal burden of proof to the defendant so that he must disprove negligence on his part.
 Therefore, if the Agency finds that the evidence supports an inference of negligence, the evidential onus of proof shifts to the air carrier to offer an acceptable explanation to counter that inference.
 The evidence before the Agency shows that:
- Mr. Caldicott's laptop was in working order when he placed it on the Skycheck cart. He had been using it prior to boarding and had taken it out of its case to pass through the security checkpoint;
- once Mr. Caldicott had placed his laptop on the Skycheck cart, the case and laptop were in the carrier's exclusive control;
- when Mr. Caldicott picked his laptop up from the Skycheck cart in Vancouver, he discovered the damage at the airport as soon as he turned the laptop on; and
- the screen was badly damaged and in a condition consistent only with the laptop having undergone "severe concussive forces".
 In light of the foregoing analysis and the agreed facts of this case, the Agency is satisfied that (1) the damage to Mr. Caldicott's laptop occurred while it was in the carrier's care and (2) the condition of the laptop before Mr. Caldicott placed it on the Skycheck cart and its condition when he retrieved it is sufficient to indicate unfavourable inference upon the carrier. Therefore, the Agency finds that the evidence supports an inference of negligence and that the evidential onus of proof is on the carrier to offer an acceptable explanation to counter that inference.
 The Agency finds that as Jazz failed to produce evidence that it was not negligent or an explanation tantamount to no negligence, it is answerable for neglect. The Agency finds therefore that Jazz is liable for damages caused by the negligent handling of Mr. Caldicott's laptop.
Limit of liability
 Pursuant to subparagraph 107(1)(n)(x) of the ATR, any limit of liability must be clearly set out in a carrier's tariff. Accordingly, the Agency must determine whether the tariff clearly limits Jazz's liability for damage to carry-on baggage when such damage occurs as a result of the carrier's negligence.
 In its Decision No. 2-C-A-2001 dated January 2, 2001, the Agency found that an air carrier's tariff meets its obligation for clarity under paragraph 107(1)(n) of the ATR, when, in the opinion of a reasonable person, the rights and obligations of both the carrier and passengers are stated in such a way as to exclude any reasonable doubt, ambiguity or uncertainty.
 In the case at hand, the Agency notes that the tariff sets out different rules for checked baggage and for carry-on baggage. With respect to checked baggage, the tariff clearly sets out Jazz's liability and prescribes a maximum limit as per Rule 230AC. With respect to carry-on baggage, the tariff clearly excludes Jazz from liability in the case of damage, unless such damage is the result of the carrier's negligent handling. However, the tariff is silent concerning any maximum limit of liability for damage to carry-on baggage caused by Jazz's negligence. The Agency is of the opinion that a carrier's omission to exclude itself from liability in the event that it is negligent could also give rise to an interpretation that it does not intend to avail itself of any limit or maximum liability. As a result, it is not clear whether the carrier intends that the previously mentioned liability limit should apply in the case of negligence or whether the carrier intends to assume liability for the full value of any damage to carry-on baggage.
 The Agency finds that in light of the ambiguity with respect to the carrier's intentions, and given that the tariff is unclear with respect to Jazz's maximum liability limit in the event of negligence, there is no limit of liability clearly set out in the carrier's tariff. Accordingly, the carrier cannot avail itself of any limit of liability and therefore the Agency hereby orders Jazz to compensate Mr. Caldicott for the replacement value of his laptop.
 In light of the foregoing, the Agency hereby directs Jazz to compensate Mr. Caldicott, within thirty (30) days from the date of this Decision, in the amount of $1,784.86 which represents the replacement value for his damaged laptop.
- George Proud
- Baljinder Gill
- Guy Delisle