Court File and Parties

COURT FILE NO.: CV-18-00607665-0000 DATE: 20210305

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LAWRENCE MPAMUGO and KATHLEEN MPAMUGO Plaintiffs – and – FLIGHTHUB CANADA INC., WESTJET, and- DELTA AIR LINES, INC. also known as DELTA AIR LINES Defendants

Counsel: Matthew Tubie, for the Plaintiffs Emma Romano and Carlos P Martins, for the Defendant Delta Air Lines, Inc. S. Foster, for Westjet

HEARD: March 4, 2021

FL Myers J

Reasons for Judgment

This Motion

[1] Delta Air Lines, Inc. moves to dismiss the claims against it for disclosing no reasonable cause of action [1].

[2] The Mpamugos booked online airline tickets to travel from Toronto to Nigeria through Atlanta, Georgia. They sue Delta because it did not get them to Nigeria at the agreed upon time.

[3] The Mpamugos plead that they suffered very serious losses due to their delayed arrival.

[4] The plaintiffs had been warned by family members that they might have trouble flying through the US. They plead that, as they feared, US immigration authorities at Toronto Pearson Airport refused to allow Lawrence Mpamugo to enter the United States. So, the Mpamugos could not take the flight they had booked on Westjet from Toronto to Atlanta to pick up their connecting flight from Atlanta to Nigeria on Delta.

[5] The plaintiffs say that Delta was responsible to get them to Nigeria on time.

[6] The issue on this motion is whether the facts pleaded in the amended statement of claim can entitle the plaintiffs to judgment. For the purposes of this motion, I assume the facts pleaded are true. I also allow for drafting deficiencies to ensure that a good claim is not lost due to an overly technical reading of counsel’s language. In addition, complex issues of law that require an assessment of factual circumstances should not be stopped at this stage.

[7] The principal question is whether it is plain and obvious that the claim as pleaded cannot succeed even if the plaintiffs prove at a trial absolutely everything that they allege. If that is the case, there is a secondary question of whether, with amendment, the claim might be restated in a way that might succeed. Barring prejudice to the defendant, the plaintiffs should be allowed to try again if the lawsuit might be saved by amending the claim.

[8] The goal of this review is to save everyone the cost, inconvenience, and distress of litigating a lost cause in which the outcome is a forgone conclusion. Nipping a doomed action in the bud also protects over-zealous plaintiffs from amassing a large costs liability.

[9] But, if the action is not obviously doomed to fail, then it must be allowed to proceed.

[10] That said, for the reasons explained below, the claims made against Delta must be struck out. Despite the plaintiffs trying to plead claims in contract and negligence, the airline cannot be held liable at law for the plaintiffs’ personal immigration circumstances.

[11] There is one claim that is not obviously doomed to fail. The plaintiffs could possibly claim a refund for their unused return tickets between Atlanta and Nigeria. I do not know if that claim would succeed. It depends on the contract terms agreed between the parties. But on their current pleading, the plaintiffs do not make that claim expressly. Moreover, it lies best in the Small Claims Court in any event.

[12] To preserve the limitation period, rather than dismissing the action against Delta completely, I am willing to strike the existing claims and transfer to the Small Claims Court the plaintiffs’ putative claim for a refund. It might be simpler were the parties to agree that this claim will just be dismissed on the basis that the plaintiffs will have some fixed period of time to sue for a refund in Small Claims Court without Delta raising a limitations defence. I leave to counsel the precise wording of the order.

The Facts Pleaded in the Amended Statement of Claim

[13] Kathleen Mpamugo booked airline tickets online for the plaintiffs’ planned trip to Nigeria. She booked the tickets herself on FlightHub.com.

[14] Kathleen Mpamugo booked flights through Atlanta, Georgia. She booked the trip from Toronto to Atlanta on WestJet. She booked the trip from Atlanta to Nigeria on Delta.

[15] The plaintiffs had two reasons to go to Nigeria. First, Lawrence Mpamugo was to attend his coronation as Eze or King of Ikwuano County, Umuhia in Abia State of Nigeria. In addition, they needed to arrange for their ill daughter in Nigeria to be flown to London, England for medical care.

[16] Kathleen Mpamugo did not realize that Lawrence Mpamugo had immigration issues with the United States. Moreover, in light of the political climate in the US at the time, family recommended that they not travel through the US.

[17] Kathleen Mpamugo called FlightHub who assured her that their tickets could be changed to fly through Europe. They said someone would get back to her. No one did.

[18] Not hearing anything further, a few days before the flights were scheduled to leave, Kathleen Mpamugo called FlightHub again. They told her to pick up new tickets at the WestJet counter at Pearson Airport on the day of their trip.

[19] When the Mpamugos attended at the WestJet counter at the airport, there were no tickets waiting for them. WestJet suggested they try to speak to someone at Delta because Delta has a relationship with both Air France and Lufthansa.

[20] Paragraph 16 of the amended statement of claim pleads:

16. The plaintiffs then went over to the Delta Air lines counter, explained their situation to the Agent and requested that they want their flight to be rebooked so that they could travel with Air France, or Lufthansa. She examined the plaintiffs' ticket and said that she could not do anything at this time. However, that if for some reason the plaintiffs were unable to fly through the USA that they could come back for her to rebook their flight to fly through Europe with Air France or Lufthansa. The plaintiffs then gave her their Canadian Passports, after which she checked the plaintiffs in, including their luggage. She then directed the plaintiffs to the USA Customs and Immigration Services. [Emphasis added.]

[21] Kathleen Mpamugo cleared US immigration and could have boarded the Westjet flight to Atlanta.

[22] However, US government officials at Pearson Airport denied Lawrence Mpamugo permission to enter the United States.

[23] The Mpamugos then plead that they got a runaround. FlightHub told them to call Westjet. Westjet told them to call Delta. Delta said that only the booking agent FlightHub could rebook the tickets.

[24] At para. 26 of the amended statement of claim, the plaintiffs recount that they called FlightHub again:

The [FlightHub] Agent told Kathleen that Flight hub was not responsible to rebook or reschedule their flight as they received only a small fee or percentage of the fare as a booking Agent. She said that the bulk of the money paid to purchase the Airline tickets was shared between Delta Airlines and Westjet. The agent stated further that it was up to Delta and/or Westjet to rebook or reschedule the plaintiffs' flights to Nigeria not Flight hub.

[25] In para. 27, they plead:

27. It was at that point, that the plaintiffs were so tired of the run around and being at Toronto Airport for over 6 hours, that Kathleen requested to the Flight hub Agent that Flight hub needed to refund their the [sic] money that was paid to them for the Airfares. The Agent told her that either West jet or Delta airlines should refund the plaintiffs' monies for the flight to Nigeria.

[26] The plaintiffs were unable to get to Nigeria for a week. As a result, they say, Mr. Mpamugo lost his entitlement to the throne and accompanying benefits. He was also subjected to monetary punishment. In addition, they plead that their daughter passed away before they were able to get to Nigeria to take her to England for medical care.

The Legal Claims

[27] The plaintiffs sue for approximately $7.5 million plus punitive damages of $500,000 for breach of contract and negligence. They have not specifically claimed for the refund of their tickets although they do mention that they asked FlightHub for a refund as quoted above. Mr Tubie confirmed that if the only claim left is for a refund, then that claim should be advanced in the Small Claims Court.

[28] The plaintiffs claim that Delta owed them a duty, in contract and negligence, to replace their tickets with flights on another airline to get them to Nigeria at the time that they were supposed to arrive there on Delta. It is important that the claim must include the time of arrival because Mr. Mpamugo could only become king and their daughter could only have been taken to England if they arrived more or less on time.

[29] The plaintiffs recognize that their claims are governed by the Carriage by Air Act, RSC 1985, c C-26 which proclaims into force in Canada the Montreal Convention (the Convention for the Unification of Certain Rules Relating to International Carriage by Air).

[30] As confirmed by the Supreme Court of Canada, article 29 of the Montreal Convention limits claims against airlines relating to air travel to those allowed under the convention. See: Thibodeau v. Air Canada, 2014 SCC 67.

[31] Article 19 of the Montreal Convention is relied upon by the plaintiffs. It allows for claims made when for losses suffered sue to flight delays:

Article 19 — Delay

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. [Emphasis added.]

[32] Mr. Tubie agues that the burden is on Delta to show that its employees took all reasonable measures to get the plaintiffs to Nigeria on time. However, that presupposes that the plaintiffs are claiming for losses “occasioned by delay in the carriage by air of passengers, baggage or cargo”.

[33] The plaintiffs do not plead that the Delta flight that they booked was delayed in arriving at Nigeria. They plead that due to Mr. Mpamugo’s immigration problems, he could not get to Atlanta to take the flight and Mrs. Mpamugo chose not to go alone.

Contract Claims cannot Succeed

[34] Para. 23 of the amended statement of claim begins:

23. The plaintiffs missed their flight as they could not be boarded or helped by either West jet, Delta Airlines or Flighthub on the day of their scheduled flight.

[35] Missing a flight due to immigration problems is not damage occasioned by the delay in the carriage of passengers. There is no contractual term pleaded whereby Delta is responsible for the plaintiffs’ immigration problem that prevented them from travelling to the city from which they booked their Delta flight.

[36] The plaintiffs plead that the airlines failed to comply with s. 122 of Air Transportation Regulations, SOR/88-58, under the Canada Transportation Act, SC 1996, c 10 by providing in their tariffs information to passengers who are affected by a cancellation, delay, or denial of boarding. However, that section simply requires mandatory categories of issues to be dealt with in each airline’s tariffs (contract terms). The plaintiffs plead no term of the Delta tariff that requires it to re-book customers who, due to their own immigration status, cannot get to the outgoing location of a flight – let alone to do so on a different airline and on flights that ensure that the passengers arrive at the same time as the Delta flight that they cannot take. [2]

[37] To state the obvious, airlines cannot assure passengers of their personal immigration status and cannot be held liable for the passengers’ failure to ensure that they have arranged visas or other documents required to enter a country to which they wish to fly.

[38] Spence J. relied on well established law in Robotham v. WestJet Airlines, 2014 ONSC 3141 in holding:

These decisions are consistent in their conclusions that it is the passenger's responsibility to ensure they have the required travel documents, and that airline companies are not liable for requiring Canadians returning to Canada to present a Canadian passport or visa.

Negligence Claims cannot Succeed

[39] The plaintiffs plead at para 33 of their amended statement of claim:

The defendants, Flight Hub, West Jet and Delta Air lines, owed a duty of care to the plaintiffs as booking agents and airline transportation companies respectively. The defendants breached their duty of care owed to the plaintiffs as customers using the defendants' services. The Defendants breached of the duty of care owed to the plaintiffs which breach caused severe damages to the plaintiffs, the particulars of which are as follows:

a). The defendants knew or ought to have known that the plaintiff will not be allowed by the USA immigration to board West Jet or Delta Airlines travelling through/transit in the USA to Nigeria having been informed of the plaintiff's prior predicament/plight with travelling through the USA;

b). The defendants knew or ought to have known that failure of the plaintiff to board the flight on the scheduled day or soon after the missed flight, would result in damages that are incalculable and devastating;

c). That the defendants' Negligence made the plaintiff lose his traditional title of the Eze (King) of his town in Nigeria;

d). That the defendants' negligence was the direct or indirect cause of the plaintiff's loss of the Traditional Title to his Kingship of Ikwuano County Community, Nigeria;

e). That each defendants even after realizing that there was a problem with the booking did nothing to correct the booking but rather simply pass the bulk of blame to the other defendants;

f). That the plaintiffs are customers of the defendants and by that fact the defendants owed a duty of care to the plaintiffs. The defendants' agents, ticket officers or airline counter desk officers were acting for and on behalf of the defendants at all times of the transaction with the plaintiffs and breached the duty of care owed to the plaintiffs;

g). That the defendants behaved in a reprehensive manner like untouchables corporations that cannot be held liable for such magnitude of breach of duty to its customers. That the court should hold the defendants to the same standard as ordinary citizens using their services;

h). That the defendants caused the death of the plaintiffs' daughter's in Nigeria by their breach of the duty of care and that such damages was not remote;

i). That the defendants' breach of the duty of care caused the plaintiff's lost opportunity to benefit from being the Eze ("King") of Ikwuano People.

[40] Ignoring the intermingling of issues of causation and damages with the duty of care, the plaintiffs plead no basis in law for the duties they allege. Nor is there a basis to find a duty for care outside of the express terms of the parties’ highly regulated contract. See: Robotham, at paras. 49 and 50.

[41] As noted above, Mr. Tubie asserts that Delta owed a duty to the plaintiffs to rebook them on flights with another airline to arrive at the same time as the Delta flights so Mr. Mpamugo would not miss his coronation and so the Mpamugos could take their daughter to England. With respect, the plaintiffs confuse the airline’s duties with their own personal responsibilities. Under a proximity, foreseeability analysis, this does not present a complex or a novel theory. It is just wrong. The plaintiffs present no basis in law to allege that they are entitled to sue outside of the Montreal Convention to force an airline whose flight they miss due to their own immigration issues to rebook them (a) on a competitor airline; (b) transiting only through countries which they are authorized to enter; and (b) to arrive at the same time as the missed flight and to hold the airline liable for failing to do so.

[42] The plaintiffs do not even plead that other flights existed that were available to them. They were not able to rebook themselves to get to Nigeria for a full week.

[43] It is plain and obvious that the plaintiffs cannot succeed on their claim as drafted.

Amendments

[44] Mr. Tubie argues that the plaintiffs should be able to amend their claim again, to build upon the bolded sentences above in para. 16 of their amended statement of claim that say:

She examined the plaintiffs' ticket and said that she could not do anything at this time. However, that if for some reason the plaintiffs were unable to fly through the USA that they could come back for her to rebook their flight to fly through Europe with Air France or Lufthansa.

[45] Mr. Tubie argues that when the desk clerk said she could rebook the flight through Europe and then Delta was unable to help, Delta caused the plaintiffs’ losses and should be held liable.

[46] It is plain and obvious that a gratuitous offer to help (after saying there was nothing she could do) was not a contractual promise. There is no consideration flowing to Delta. Moreover, the airline’s liability still remains subject to the Montreal Convention.

[47] Mr. Tubie does not argue that the desk clerk entered into a new contract. Rather, he proposes to amend the claim to plead that her statement amounted to “contributory negligence”. The problem is contributory negligence is not a cause of action or a basis to sue.

[48] Mr. Tubie says that since his clients’ may be alleged to have been negligent, they can look to Delta for contribution. They rely on case law that says that a party can be held liable for contribution without owing a duty of care to the plaintiff. That is true. But it still requires a lawsuit by a plaintiff against a defendant for negligence before the defendant can say that someone else ought to contribute to the plaintiff’s damages.

[49] Here Delta is not suing the plaintiffs for damages caused by the plaintiffs’ negligence. It is the plaintiffs who sue Delta for negligence and for that claim they do need to establish the duty of care on which they rely.

[50] Mr. Tubie then argues that the desk clerk’s offer of assistance created a “reasonable expectation” in the plaintiffs. Even if an offer to rebook could create a “reasonable expectation” that Delta would rebook on a competitor to arrive at the same time, the common law does not provide a remedy for “reasonable expectation”. Mr. Tubie knew of none.

[51] The plaintiffs do not allege that the statement could amount to the tort of negligent misrepresentation. Nothing pleaded shows any hint of reliance or causation for that tort. Plus, the Montreal Convention remains a firm obstacle.

[52] Mr. Tubie submits two things. First, the creation of a reasonable expectation supports the argument that Delta was contributorily negligent. Second, he argues, Delta did not have to offer to help. But having done so, it should be held responsible for all of the losses that befell the plaintiffs.

[53] The plaintiffs cannot sue for contributory negligence and adding the words “reasonable expectation” does not change that.

[54] Moreover, in addition to there being no legal basis for this submission, telling people that if they say they will try to help could mean that the entire loss another party may have brought on themselves becomes the responsibility of the helper, is a terrible suggestion for the law.

[55] Of course, there is law that intermeddlers can incur liability if they cause or worsen someone’s losses unlawfully. But nothing at all is pleaded or could be pleaded on the plaintiffs’ story that could make an airline liable because a counter clerk says she will help and then the airline is unable or unwilling to book them on a different airline to arrive at the same time as the flight they missed.

[56] Finally, Mr. Tubie argues that Delta can be held liable for the plaintiffs’ daughter’s death under Article 19 of the Montreal Convention. The fact that she is not a passenger whose air travel was delayed precludes that claim.

[57] There is nothing that the plaintiffs can plead that will make Delta responsible for their failure to ensure that they had the ability to enter the US to get to Atlanta for the flight that they booked. They might have an ability to claim a refund for their unused tickets depending on the wording of the applicable tariff. But there is simply no basis in the law for an amendment to make Delta responsible in contract or tort for the losses suffered by the plaintiffs in the circumstances.

[58] Accordingly, I would grant leave to the plaintiffs to amend their amended statement of claim to claim a refund if the plaintiffs wish to do so. I would then transfer that claim to the Toronto Small Claims Court.

Outcome

[59] I have great sympathy for the plaintiffs for the losses they say they suffered. The losses transcend monetary claims. No parent should have to endure the loss of a child. Loss of a throne too sounds very substantial and difficult to bear.

[60] But despite what sometimes appears to be a common belief, the law does not entitle us to compensation from others just because we suffer losses however extreme. There is still a division between personal responsibility and times when others will be held responsible for losses that they cause us to suffer. Delta is not and cannot be pleaded to have undertaken liability for the plaintiff’s immigration issues by contract. Plus, the common law of negligence does not impose anything like the duty of care asserted by plaintiffs. Moreover, the Montreal Convention stands in their way even if it did.

[61] It was up to the plaintiffs to ensure that they had the tickets that they wanted and the immigration approvals they needed to get to Nigeria when they wished to get there. Nothing done or not done by Delta affected that outcome.

[62] An order will go granting the relief sought in para. 70 of Delta’s factum striking the claims against it with leave to amend only for the plaintiffs to assert a claim for a refund of the fare for the trips they missed to and from Atlanta. That claim, if made, is to be transferred or brought in the Toronto Small Claims Court. In all other respects, the claim against Delta is dismissed.

[63] The plaintiffs shall pay Delta its costs of this motion fixed at $8,000 on a partial indemnity basis all-inclusive. That amount is fair, reasonable, and well within the reasonable expectation of a party making a multimillion dollar claim.

[64] Delta may deliver cost submissions concerning the rest of the action no later than March 12, 2021. The plaintiffs may deliver cost submissions no later than March 19, 2021. Both sides shall deliver Costs Outlines. In addition, the parties may deliver copies of any offers to settle on which they rely. Submissions shall be no longer than three pages (not counting the Cost Outlines and offers to settle).

[65] All costs material is to be filed through the Civil Submissions Online portal and shall also be sent to me in searchable PDF format as an attachment to an email to my Judicial Assistant. No case law or statutory material is to be submitted. References to case law and statutory material, if any, shall be embedded in the parties’ submissions as hyperlinks.

FL Myers

Released: March 5, 2021

Footnotes

[1] The defendant Westjet has not brought a similar motion. The defendant FlightHub is insolvent. The plaintiffs’ claims against FlightHub have been stayed by a court order in its insolvency proceedings.

[2] While not necessary to decide this motion, the Delta tariff relied upon by the plaintiffs actually provides the opposite: Each passenger desiring transportation across any international boundary shall be responsible for obtaining all necessary travel documents and for complying with the laws of each country from, through, or to which he/she desires transportation .... No carrier shall be liable for ... the consequences to any passenger resulting from his/her failure to obtain such documents or to comply with such laws.