Date Issued: November 9, 2023

File: SC-2023-004710

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Ferguson v. Flair Airlines Ltd., 2023 BCCRT 971

Between:                                                           

TARA FERGUSON

Applicant

And:

FLAIR AIRLINES LTD.

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about delayed baggage on an international flight. The applicant, Tara Ferguson, purchased airfare with the respondent airline, Flair Airlines Ltd. (Flair). Ms. Ferguson says that she had to purchase clothing and footwear while her baggage was missing. She seeks $568 as reimbursement.

2.      Flair agrees it owes Ms. Ferguson a total of $337.15, made up of the following: 1) a refund of $87.15 in baggage fees, and 2) $250 under its policy for delayed baggage. It says it has yet to pay this sum to Ms. Ferguson. It denies owing more.

3.      Ms. Ferguson represents herself. An employee or principal represents Flair.

4.      For the reasons that follow, I find Ms. Ferguson has proven her claim.

JURISDICTION AND PROCEDURE

5.      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.

6.      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.

7.      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.

8.      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.

ISSUE

9.      The issue in this dispute is whether Ms. Ferguson is entitled to $568 as compensation for delayed baggage.

BACKGROUND, EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, Ms. Ferguson as the applicant must prove her claims on a balance of probabilities. This means more likely than not. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision. Flair did not provide evidence and Ms. Ferguson did not provide final reply submissions. Both had the opportunity to do so.

11.   A booking confirmation form shows the following. Ms. Ferguson purchased from Flair an international airline ticket from Vancouver to Puerto Vallarta. The flight was scheduled for February 1, 2023, with a return date of February 16, 2023.

12.   Ms. Ferguson took the flight as planned. It is undisputed that her baggage was delayed. On February 1, 2023, she filled out Flair’s property irregularity report about the delay. She wrote that her backpack was missing and that it contained her clothes, camera, and toiletries.

13.   A receipt dated February 2, 2023 shows she purchased clothing and footwear for a total of $6,560 Mexican pesos while in Puerto Vallarta. As of the date of this decision, this is equal to approximately $512 CAD.

14.   Flair says that Ms. Ferguson received the delayed baggage after 5 days. Ms. Ferguson did not dispute this, so I accept Flair’s submission as accurate.

15.   An email supports Flair’s submission that it offered Ms. Ferguson $250 as compensation but cancelled it in April 2023. Flair says it would have paid her $250 as compensation and reimbursed her baggage fee of $87.15 if Ms. Ferguson had followed up before applying for dispute resolution.

Is Ms. Ferguson entitled to $568 as compensation for delayed baggage?

16.   I will first discuss the applicable law. 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. I find it applies to this dispute. The Montreal Convention limits the scope and type of claim a person can make against an airline carrier like Flair.

17.   Under article 19 of the Montreal Convention, Flair is liable for damage due to baggage delay, unless it proves that it took all reasonable measures to avoid the damage or that it was impossible to take such measures. Flair provided no evidence. It also admits Ms. Ferguson is entitled to some compensation. So, I find Flair is liable to pay Ms. Ferguson for delayed baggage.

18.   Article 22(2) limits compensation for baggage delay to 1,288 special drawing rights (about $2,300 CAD) per passenger. Ms. Ferguson claims less than this limit, so I find nothing turns on it. Article 31 provides a time limit of 21 days for Ms. Ferguson to complain to Flair about the baggage delay in writing. Ms. Ferguson complained the day she arrived, so her claim is within time.

19.   The CRT has previously held that for delayed baggage, a passenger is entitled to compensation for purchasing reasonably necessary and essential items in the circumstances. See, for example, a Vice Chair’s non-binding decision of Brown v. WestJet Airlines Ltd., 2023 BCCRT 456 at paragraph 17.

20.   As noted above, Ms. Ferguson’s trip was for 15 days. She received her baggage after 5 days. I find the clothing and footwear purchases totaling $512 CAD were reasonably necessary in the circumstances, given both the length of the delay and the overall length of the trip. So, I order Flair to pay this amount. Ms. Ferguson also claims for the baggage fee. As Flair agrees it is owing, I order Flair to pay this amount as well. I reduce to the total to match Ms. Ferguson’s claim amount of $568.

21.   Flair says its compensation should be limited to $50 per day under its policy. However, there is no evidence about the alleged policy in this dispute. As noted, Flair did not provide any evidence.

22.   The Court Order Interest Act applies to the CRT. Ms. Ferguson is entitled to pre-judgment interest on the awarded damages of $568, from February 2, 2023, the date shown on the clothing receipt, to the date of this decision. This equals $20.49.

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. Flair only offered partial payment of Ms. Ferguson’s claim, so I find she had to start this dispute to obtain the full amount she was entitled to. I find she is entitled to reimbursement of $125 in CRT fees. The parties did not claim any specific dispute-related expenses.

ORDERS

24.   Within 30 days of the date of this order, I order Flair to pay Ms. Ferguson a total of $713.49, broken down as follows:

a.    $568 as damages,

b.    $20.49 in pre-judgment interest under the Court Order Interest Act, and

c.    $125 in CRT fees.

25.   Ms. Ferguson is entitled to post-judgment interest, as applicable.

 

26.   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.