ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-1121-00
DATE: 20140307
BETWEEN:
Oby Regina Ejidike
Plaintiff
– and –
The Ethiopian Airlines
Defendant
In Person
No One Appearing
HEARD: February 19, 2014
REASONS FOR JUDGMENT
Wein, J.
[1] The luggage of Ms. Ejidike went missing on a lengthy international flight from Canada to Togo, with a stopover and change of planes in Ethiopia. While much of the claim can be dealt with through application of the clear provisions of the Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309 (entered into force 4 November 2003) (the “Montreal Convention, 1999”), the matter was placed on the undefended trial list for an assessment of loss, as the defendant corporation did not respond to the claim.
The Facts
[2] Ms. Ejidike planned to travel from Toronto, Canada to Lomé, the capital of Togo, on December 7, 2012. She was ticketed by Ethiopian Airlines to go through Addis Ababa, Ethiopia with a five-hour layover and change of planes to Lomé. She testified that all her personal effects, including her high blood pressure medication, were in her luggage. She testified that the layover in Addis Ababa took longer than anticipated; an additional six hours beyond the scheduled five-hour layover. She did however reach Lomé in Togo without further incident.
[3] On arrival in Lomé, her checked bag was missing. She was told that it had been left behind at Addis Ababa. The Ethiopian Airlines official gave her the equivalent of $30 USD for hotel accommodation for one night. Her baggage was expected to be sent to her the next day, but then she was told it would be three days. She went to a better hotel after the first night, paying $80 USD per night. It was after five days that she found that her bag had been sent to Lagos in Nigeria. She testified that she was required to travel to Nigeria to claim her baggage. Her original intention had been to go west to Ghana after visiting Togo, so her vacation plans went unfulfilled. She testified that her costs of hiring a driver to get to Lagos were $400 USD.
[4] In Nigeria, she testified she had to wait another five days before she received her bag. She became ill, either because she had malaria or because of her missing medication. She also testified that she spent about a week, or three days and then another five days, in hospitals and staying in hotels (at a rate of $250 USD per day for hotels).
[5] A medical bill filed with her materials dated December 17, 2012, indicated that for a “two week admission/treatment at a rate of $500.00 a day she was billed $7,000.00, plus prescription drugs of $400.00.” However, the bill appears to have erroneously added this to a subtotal of $11,000 rather than $7,400, for a tax at 13 per cent of $1,430 for a total of $12,530 USD. The arithmetic error was not explained, nor was a payment receipt provided.
[6] As well, either because she was sick or because she decided to stay longer, she was unable to return on her scheduled departure flight of December 28, 2012 and decided to change her flight to the next available date, January 4, 2013. She indicated that this was confirmed by the airline, and that she paid $200 USD for the change of ticket.
[7] However, when she went to check-in, she found she was on stand-by and not confirmed. Before departure, she was told that there were no available seats. She collapsed and started weeping, but then the agent of the defendant airline told her that if she paid for business class she would be able to travel on that flight. She paid an additional $400 USD to the airline and was given a boarding pass.
[8] Ms. Ejidike testified that on boarding, she saw that there were a number of vacant seats in the regular class and she was not permitted to be seated in business class. She argued that she had been deliberately lied to about there being no space on the airplane just to extort money from her, and claimed $400 USD as a result of this fraudulent misrepresentation made by the airline official.
[9] On her return, she sent a letter to the Ethiopian Airlines office in Toronto, offering to settle for either $30,000 or $300,000. She received a reply referencing her letter and apologizing for the inconvenience. The reply was sent from the Customer Relations office. She was asked to provide receipted expenses incurred related to the delayed delivery of baggage. She testified that she had done this, but received no reply, and did not have a copy of the expenses submitted.
[10] Overall, in addition to her claimed expenses, in her court claim she alleged general damages in the amount of $50,000 and special and punitive damages in the amount of $300,000.
Documentary Evidence
[11] At the uncontested trial, at the request of the court, Ms. Ejidike filed some additional materials and copies of materials attached to her motion record.
[12] Exhibit 1 was a copy of a computer search of round trip fares between Toronto and Johannesburg, dated August 14, 2012, for a return date of August 20, 2012. Ms. Ejidike offered this as her ticket but agreed that it was not the correct search for the flight she eventually took. Among 12 pages of possible flights was a flight on Ethiopian Airlines between Toronto through Addis Ababa to Johannesburg, returning from Johannesburg through Addis Ababa to Toronto. The document appears to have been printed on August 10, 2012. I find that it has no relevance to this case and was mistakenly proffered as an exhibit by Ms. Ejidike.
[13] Exhibit 2 shows an acknowledgment of incidental expense paid by Ethiopian Airlines to Ms. Ejidike on December 9, in the amount of “XOF 38,000, as incidental expense, to be deducted from the final claim settlement”. Ms. Ejidike indicated that this was the equivalent of $30 USD given to her for one night’s hotel accommodation. I note that her Statement of Claim indicates that it was for $70 USD.
[14] Judicial notice may be taken of the fact that XOF or CFA franc is the currency code of the Communauté Financière Africaine (BCEAO). It is used in several West African countries that have historical ties to France, including Togo. Currently, 38,000 XOF converts to $79.58 USD, and the exchange rate was lower in late 2012, so in resolving the discrepancy in Ms. Ejidike’s evidence, I accept that at the time this was about $70 USD, not $30 USD as she testified.
[15] Exhibit 3 is a “virtual coupon record” in Ms. Ejidike’s name indicating a flight between LFW (Lomé, Togo) to ADD (Addis Ababa, Ethiopia) and then between ADD and YYZ (Toronto, Canada), all commencing on January 4, 2013 and issued on the same day. The fare is indicated at $1,020 CAD equivalent paid in U.S. dollars, XOF tax of 26 Canadian dollars and tax paid of 470 YR or 2540 SM. Ms. Ejidike indicated that (although it is not clear) this showed a payment of an additional $400 USD. There is also a fee indicated of 149,300 (which in XOF would be $313 USD at current rates).
[16] Exhibit 4 is a document, possibly a luggage tag that Ms. Ejidike could not explain, and was not decipherable by me. I place no weight on it.
[17] Exhibit 5 is a luggage collection tag on Ethiopian Airlines on January 4 from LFW indicating also Toronto, Ontario, YYZ, and ADD. I take this as confirmation of the return flight on January 4 between Lomé and Addis Ababa and a further connecting flight between Addis Ababa and Toronto.
[18] Exhibit 6 is a colour printed copy of an e-mail from the Ethiopian Airlines Manager of Customer Relations, indicating what appears to be a foreign telephone number.
[19] Exhibit 7 was a photocopied page, said to be of the Duro Soleye Hospital’s bill to Ms. Ejidike, dated December 17, 2012, indicating fees for admission treatment at the rate of $500 totaling $7,000 and prescription drugs at $400, for a subtotal of $11,000 plus tax at 13 per cent. I note the numbers in the subtotal column do not add up, unless the prescription drugs are mistakenly added at the rate of $4,000 rather than $400 as indicated. I am also concerned about the fact that there was no original bill provided and no receipt indicating payment. As well, the photocopy of the document has lines on it, making it appear to have been taped or pasted together before copying, with a separate heading. Finally, the date of December 17, 2012 suggests that Ms. Ejidike was not in the hospital for two weeks. If she had arrived in Lomé on December 9 as her evidence confirmed by the incidental expense form states, and then spent at least five days there before finding she had to go to Lagos, Nigeria, she would not have arrived in Lagos until December 14 at the earliest. The bill for two weeks is dated three days later. From this record, I cannot accept that the amount of $12,530 was paid or even that the amount of $7,400 plus tax was billed. It is not sufficient in my view, given the errors on its face, to adequately support this part of the claim.
[20] Exhibit 8 was filed by Ms. Ejidike at the request of the court. It is her February 12, 2013 letter to Ethiopian Airlines. It commences “the undersigned hereby demands a settlement amount of $30,000.00 as compensation for pecuniary and non-pecuniary damages suffered as a result of the negligence of your airline and its officials”. After an outline of the facts, it states: “I am therefore demanding the sum of $300,000.00 as compensation for pecuniary and non-pecuniary damages I’ve suffered”. Ms. Ejidike also indicated that she would proceed to court for legal redress if she received no reply.
[21] In this outline of facts she adds some details. These include:
• the discomfort and hunger and extreme heat at the airport in Addis Ababa for the delay of 11 hours;
• addition of taxi fare at the Lomé airport as the taxi was waiting for the delayed flight;
• that the amount received for one night’s hotel accommodation was “CF 38,000.00” (I note that XOF is the symbol for CFA francs);
• that she fell sick shortly after a week mainly as a result of not taking her medication, and the stress and frustration from not having personal belongings; and
• that the payment for the business class ticket was an additional A/C 174500 which is the equivalent of $400 (XOF 174,500 converts to $365 USD).
Legal Parameters
[22] Ms. Ejidike relied on passages from the article by M.R. Franks, “Airline Liability for Loss, Damage, or Delay of Passenger Baggage” (2007) 12 Fordham J. Corp. & Fin. L. 735, at pp. 745-47 and 749. In the argument, we also discussed three cases: Holden v. Ace Aviation Holdings Inc. (2008), 2008 40223 (ON SCDC), 296 D.L.R. (4th) 233 (Ont. Div. Ct.); Gontcharov v. Canjet, 2012 ONSC 2279, 111 O.R. (3d) 135; and O’Mara v. Air Canada, 2013 ONSC 2931, 115 O.R. (3d) 673. She indicated that she is aware of the Montreal Convention, 1999. Ms. Ejidike, while self-represented, is also a lawyer practicing in Ontario.
[23] The liability of an air carrier for passenger claims arising out of lost luggage in international carriage by air is governed by international treaty. Both the Warsaw Convention and the Montreal Convention, 1999, are incorporated into the laws of Canada by the Carriage by Air Act, R.S.C. 1985, c. C-26. The Warsaw Convention was originally signed in 1929 and substantially amended at Montreal on May 28, 1999, by the Montreal Convention, 1999. Article 18 governs damage for loss of baggage and Article 19 for damage occasioned by delay of passengers and baggage. Payment is based on the International Monetary Fund’s Special Drawing Rights, or SDR’s, amounts which can be converted into local currencies.
[24] Article 18 states:
The carrier is liable for damage sustained in the event of the destruction or loss of or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air.
However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following:
(a) inherent defect, quality or vice of that cargo;
(b) defective packing of that cargo performed by a person other than the carrier or its servants or agents;
(c) an act of war or an armed conflict;
(d) an act of public authority carried out in connection with the entry, exit or transit of the cargo.
The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier.
The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air.
[25] Article 19 states:
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
[26] Article 29 also provides that:
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
[27] It is not disputed that the liability of the carrier for lost damage or delay in a carriage of baggage is limited to 1,000 Special Drawing Rights for each passenger unless extra insurance has been taken out. It is not disputed that 1,000 Special Drawing Rights equated to $1,514.86 Canadian dollars on December 9, 2012.[^1]
[28] The issue is whether or not a claim above that amount, for general damages, special and punitive damages, can be made in this case. It is also not argued in this case that Ms. Ejidike was unaware of the limits of liability, or that Article 3(5) of the Montreal Convention, 1999 governs: the quantum of recovery is limited even in the absence of notice.
[29] In any event, these points are well-established in the case law referred to above. That damages for pain and suffering, and mental distress cannot be claimed, is clarified in the decisions of Gontcharov and O’Mara.
Argument
[30] Ms. Ejidike argued that on policy grounds, the court ought not to follow the pre-existing case law, because the restrictions on liability permit airlines to treat their passengers in a reckless manner, without regard to the impact of the loss of baggage, or allow them to make false representations as with respect to the claim for the upgrade fee. By contrast, of course, are the policies of clarity and international comité which were accepted by Canada in becoming a signatory to international treaties.
Ruling
[31] The many clear authorities direct me to dismiss Ms. Ejidike’s claim for amounts beyond those set out in the Montreal Convention, 1999.
[32] While the quantum of damages and receipts verifying damages is in dispute, there is no doubt that the trip was made, the baggage was lost, and that expenses of at least 1,000 SDR must have been incurred before the baggage was recovered. There is no evidence to the contrary, and accordingly, notwithstanding the vagueness of some parts of the evidence and the lack of documentation for hotel receipts, for example, I accept that at least that amount must have resulted from the delay in baggage.
[33] The claim for the upgrade fee was based on a separate claim of false misrepresentation. On the evidence before me, the fee was paid but an upgraded seat was not provided. Accordingly, I would allow the additional claim for compensation for the upgrade fee, which on the evidence, was possibly as high as $365 USD or $359.74 in Canadian dollars.[^2]
[34] While the entire event was distressing to Ms. Ejidike, I do not accept that an additional claim for damages for emotional distress is appropriate in the circumstances of that limited claim. To the extent that distress was aggravated by the loss of medication, it can be said that in any event, she ought to have kept prescription medication with her in her carry-on-baggage.
[35] In the result, there will be judgment for the plaintiff in the amount of 1,000 SDR minus $70 USD, calculated in Canadian dollars.[^3] In addition, there will be judgment in the amount of the upgrade fee, of $365 USD, or $359.74 CAD.
[36] The total amount of judgment is therefore $1,805.37.
Costs
[37] While success was limited, if she deems appropriate, I will receive a written submission on this issue from the self-represented plaintiff, limited to three pages, to be filed within 15 days of release of this judgment.
Wein, J.
Released: March 7, 2014
COURT FILE NO.: CV-13-1121-00
DATE: 20140207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Oby Regina Ejidike
-and-
The Ethiopian Airlines
REASONS FOR JUDGMENT
Wein, J.
Released: March 7, 2014
[^1]: The SDR rate for December 9, 2012 is unavailable. The SDR valuation history record shows SDR rates for December 7 and 10, 2012. For all the December 9, 2012 calculations, I rely on the December 7, 2012 SDR rate: “SDR Valuation”, online: International Monetary Fund https://www.imf.org/external/np/fin/data/rms_sdrv.aspx (“IMF online”).
[^2]: The USD to CAD exchange rate on January 4, 2013 was 0.9856: “10-year currency converter”, online: Bank of Canada http://www.bankofcanada.ca/rates/exchange/10-year-converter (“Bank of Canada”).
[^3]: 1000 SDR = $1,531.71 USD - $70 USD = $1,461.71 USD. The USD to CAD exchange rate on December 7, 2012 was 0.9890 = $1,445.63 CAD: see IMF online and Bank of Canada.