Date Issued: May 29, 2023

File: SC-2022-005176

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Zunic v. Air Canada, 2023 BCCRT 445

Between:

BRUNO ZUNIC

Applicant

And:

AIR CANADA

Respondent

REASONS FOR DECISION
Tribunal Member:	Sarah Orr

INTRODUCTION

1.      This is a dispute about delayed baggage on an international flight.

2.      On June 26, 2022, the applicant, Bruno Zunic, travelled from Vancouver to Orlando, Florida on a flight operated by the respondent airline, Air Canada. Shortly after arriving in Orlando, Mr. Zunic boarded a 9-day cruise. Mr. Zunic’s baggage did not arrive in Orlando before he boarded the cruise, so he did not receive it until he returned home over a week later.

3.      Mr. Zunic claims $5,000 for clothing and necessities he purchased during his trip.

4.      Air Canada says it has already paid Mr. Zunic the maximum compensation he is entitled to under the Montreal Convention and so his claim is moot.

5.      Mr. Zunic is self-represented in this dispute, and Air Canada is represented by an employee or principal.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

7.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

8.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

10.   Throughout Mr. Zunic’s submissions he refers to his travel partner and it appears he may be making claims on their behalf. Mr. Zunic’s travel partner is not a party to this dispute, so I find I cannot address any of their claims. I address only Mr. Zunic’s claims against Air Canada in this decision.

11.   In his submissions, Mr. Zunic claims $885 for credit card interest and $500 for damaged luggage. He also says his delayed baggage caused him emotional distress. However, these claims are not contained in the Dispute Notice, and Mr. Zunic did not amend the Dispute Notice to add them. Since the Dispute Notice frames an applicant’s claim, I find it would be procedurally unfair to address these additional claims in this dispute, so I decline to do so.

ISSUE

12.   The issue in this dispute is whether Mr. Zunic is entitled to $5,000 compensation from Air Canada for his delayed baggage.

EVIDENCE AND ANALYSIS

13.   In a civil proceeding like this one, as the applicant, Mr. Zunic must prove his claims on a balance of probabilities. I have read all the parties’ evidence and submissions but refer only to what I find relevant to explain my decision.

14.   On June 26, 2022, Mr. Zunic travelled from Vancouver to Orlando, Florida, with a layover in Toronto, on flights operated by Air Canada. Mr. Zunic checked 1 bag for his journey. Mr. Zunic arrived in Orlando at approximately 10:00 a.m. on June 27, 2022, and discovered that his checked bag would not be arriving in Orlando until 4:00 p.m. that day. Mr. Zunic’s cruise departed Orlando at 3:00 p.m. that day, so he did not receive his bag before boarding the cruise. None of this is disputed.

15.   On June 27, 2022, Mr. Zunic completed a missing baggage report with Air Canada. Air Canada undisputedly delivered Mr. Zunic’s bag to his home in the Vancouver area on July 4, 2022. However, Mr. Zunic undisputedly did not arrive home from his trip and receive his bag until several days later.

16.   The Montreal Convention is an international treaty with the force of law in Canada under the federal Carriage by Air Act (see Thibodeau v. Air Canada, 2014 SCC 67). It applies to all international air carriage of people, baggage, and cargo. The Montreal Convention limits the scope and type of claim a person can make against an airline carrier like Air Canada. Air Canada says this dispute is governed by the Montreal Convention. Mr. Zunic says the Montreal Convention does not apply to this dispute but does not explain why. I am satisfied that the Montreal Convention applies to this dispute.

17.   Under Article 19 of the Montreal Convention, Air Canada is liable for damage caused to Mr. Zunic by delayed baggage unless it can prove it took all reasonable measures to avoid the damage, or that it was impossible to take such measures. Air Canada provided no such evidence, so I find it is liable to pay Mr. Zunic compensation for his delayed baggage.

18.   Mr. Zunic undisputedly filed an online baggage claim with Air Canada on July 3, 2022. He says he had difficulty using the website but did his best to submit his receipts. He says the total amount of his receipts was $3,418.04 USD, which I find is the total amount of the receipts he submitted as evidence in this dispute. Air Canada says Mr. Zunic submitted receipts totaling approximately $3,600 CAD but did not provide evidence to support this.

19.   Article 22 of the Montreal Convention limits compensation for baggage delay to 1288 special drawing rights per passenger, which is approximately $2,300 CAD. Mr. Zunic says the Montreal Convention guarantees $3,800 as compensation for delayed baggage on international flights but provided no evidence to support this assertion. I am satisfied that Article 22 of the Montreal Convention applies to this dispute, and I find Mr. Zunic’s claim is limited to 1288 special drawing rights which converts to $2,327.04 CAD as of the date of this decision.

20.   On March 22, 2023, Air Canada undisputedly sent Mr. Zunic an e-transfer payment of $2,220.09. Air Canada says it complied with its obligation under Article 22 of the Montreal Convention by paying Mr. Zunic the maximum amount to which he is entitled. Air Canada says it owes Mr. Zunic no further compensation, and that his claim is moot. However, Mr. Zunic submitted an email showing he did not accept this payment from Air Canada and let the e-transfer expire. Air Canada did not respond to this piece of evidence. So, I am satisfied that Mr. Zunic did not receive Air Canada’s payment of $2,220.09.

21.   Since Air Canada’s payment was not made without prejudice, I find it is an admission that it owes Mr. Zunic $2,220.09. Air Canada does not explicitly say how it arrived at this amount. However, I am satisfied from the evidence before me that Mr. Zunic reasonably spent more than the maximum allowable compensation of $2,327.04 on clothing and necessities for his trip. Mr. Zunic was undisputedly traveling without his bag for over a week and had very limited time to purchase anything between the time he learned in Orlando that his baggage was delayed until he was required to board the cruise. He undisputedly had no access to laundry facilities during his trip. I find Mr. Zunic is entitled to the maximum compensation under Article 22 of the Montreal Convention. So, I find Air Canada must pay Mr. Zunic $2,327.04 as compensation for his delayed baggage.

22.   The Court Order Interest Act applies to the CRT. Mr. Zunic is entitled to pre-judgment interest on the $2,327.04 owing calculated from July 3, 2022, which is the date of his online baggage claim with Air Canada, to the date of this decision. This equals $9.47.

23.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Since Mr. Zunic was successful, I find he is entitled to reimbursement of $175 in CRT fees and reasonable dispute-related expenses.

24.   Mr. Zunic claims $300 in dispute-related expenses but does not explain what this amount is for. He did not provide evidence of these expenses. I find Mr. Zunic has not established he is entitled to $300 in dispute-related expenses, and I dismiss this claim.

ORDERS

25.   Within 30 days of the date of this order, I order Air Canada to pay Mr. Zunic a total of $2,511.51, broken down as follows:

a.    $2,327.04 in damages as compensation for his delayed baggage,

b.    $9.47 in pre-judgment interest under the Court Order Interest Act, and

c.    $175 in CRT fees.

26.   Mr. Zunic is entitled to post-judgment interest, as applicable.

27.   I dismiss Mr. Zunic’s claim for dispute-related expenses.

28.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.