CITATION: Virk v. Air India Canada, 2011 ONSC 384
DIVISIONAL COURT FILE NO.: DC-10-0057-00
DATE: 20110118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
[on appeal from an order of the Small Claims Court
Deputy Justice G. Bobesich, dated May 11, 2010; File No. SC-09-0385-00]
Justice Thomas A. Bielby
BETWEEN:
Prabhdeep Virk and Chandandeep Kaur
Appellants/Plaintiffs
– and –
Air India Canada and Gill International Travel
Respondents/Defendants
Appearing for themselves
Damian Fernandes and Satyajit Chowhan, for the appearing as representatives for Air India Canada
No one appear for Gill International Travel
HEARD: January 14, 2011
[1] This is an appeal of the judgment of Deputy Justice G. Bobesich, dated May 11, 2010, in which he dismissed the plaintiffs’ claim and awarded costs to the defendants.
[2] On November 20th, 2008 the plaintiff Prabhdeep Virk (Virk) went to the offices of the defendant Gill International Travel and booked flights to India on Air India Canada (Air) to leave Toronto on November 23rd. The tickets were for himself and his two children.
[3] When he attended at the Air counter on the day of the flight, it was discovered by Air that his Canadian Permanent Resident permit had expired. Virk knew this when he booked the tickets. Air, in accordance with its policies and its knowledge of the law, would not allow Virk to board with an expired permit.
[4] Virk then inquired whether the children could travel without him. It is unclear whether he wanted them to travel as unaccompanied minors or with his relatives who were also to be passengers on the plane.
[5] The children were not allowed to travel without their father. Air’s evidence was that, if the children were to travel unaccompanied, it not only needed the written consent of the parents but advance notice to arrange and ensure the childrens’ safe transit. If the children were to travel with another adult, the consent had to be notarized.
[6] Without either sufficient notice or a notarized consent, the children as well were not allowed to board the plane.
[7] At trial, the evidence for Gill International Travel (Gill) was the need for a valid Canadian Permanent Resident permit and this was explained to Virk when he purchased the tickets. This was disputed by Virk, but the trial judge ruled that he preferred the evidence of the defendants over that of Virk whenever there was a conflict. This is a finding of credibility totally within the discretion of the trial judge and is unchallenged by me.
[8] The trial judge ruled that the plaintiff had not proven his case and that it was incumbent on him to have the proper documents. He further ruled that the plaintiff had not proven his damages as claimed.
[9] The plaintiff’s appeal on the ground that the learned trial judge, in making his findings, ruled that they needed a notarized consent for the children to travel and that the facts as disclosed in the transcript say otherwise. As referenced above, the plaintiffs are at least half correct. If the children are unaccompanied by anyone, the parental consent does not have to be certified or notarized. But, if the children were to travel with another relative the consent had to be certified.
[10] In my opinion, the slight error by the trial judge on this issue is not sufficient to overturn the decision and the appeal must fail.
[11] The literature from foreign affairs Canada clearly recommends that any such consent be certified. Further, as Virk agreed with the Court: had his residency card not expired, there would have been no problem with him and his children travelling to India.
[12] As for the children, the thought of them travelling without their father was an afterthought. Air was well within its authority to request reasonable notice of such travel to ensure the safety of the children if travelling alone or a notarized consent if they were to travel with another relative. While there may have been some discretion in such issues, there was, in my opinion, no legal obligation on Air to request less adherence to procedure.
[13] Gill cannot be faulted on this point, as it was never suggested to it that the children would travel without their parent.
[14] In any event, in arguing the appeal, Virk indicated he no longer had any issue with Gill and had paid Gill its costs awarded by the trial judge.
[15] In this day and age, where it is well known that some countries do not accept passports that are within 6 months of expiry but still valid, it is only reasonable to conclude that travel documents such as a residency card must also be current. Virk advised the court that the trip was arranged on an emergency basis so he did not have time to have his card re-issued. In my opinion, it was negligent on his part to allow the card to expire in the first place.
[16] As to the damages, the evidence states that when Virk and the children travelled to India two months later, each ticket was $425.00 more expensive, which amount included a penalty for re-booking and an additional service fee. That is the extent of the damages. No further damages were proven or would be warranted.
[17] The appeal is dismissed without costs. The defendants, in response to this appeal made no filings until the commencement of the appeal. For that reason, I would not allow costs and also note none of the parties retained legal counsel.
Justice Thomas A. Bielby
Released: January 18, 2011
CITATION: Virk v. Air India Canada, 2011 ONSC 384
DIVISIONAL COURT FILE NO.: DC-10-0057-00
DATE: 20110118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
[on appeal from an order of the Small Claims Court Deputy Justice Bobesich, May 11, 2010; File No. SC-09-0385-00]
Justice Thomas A. Bielby
BETWEEN:
Prabhdeep Virk and Chandandeep Kaur
Appellants/Plaintiffs
– and –
Air India Canada and Gill International Travel
Respondents/Defendants
REASONS FOR JUDGMENT
Released: January 18, 2011