Virk v. Air India Canada, 2011 ONSC 384

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

Overview

1This 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.

Background

2On November 20^th, 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 23^rd. The tickets were for himself and his two children.

3When 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.

4Virk 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.

5The 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.

6Without either sufficient notice or a notarized consent, the children as well were not allowed to board the plane.

The Trial Decision

7At 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.

8The 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.

Analysis

9The 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.

10In my opinion, the slight error by the trial judge on this issue is not sufficient to overturn the decision and the appeal must fail.

11The 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.

12As 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.

13Gill cannot be faulted on this point, as it was never suggested to it that the children would travel without their parent.

14In 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.

15In 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.

Damages

16As 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.

Disposition and Costs

17The 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]