From Vancouver Sun – link to source story

Airline tried to have the small claims case moved to the Canadian Transportation Agency instead of the B.C.’s civil resolution tribunal. The tribunal disagreed

Susan Lazaruk • Mar 18, 2021

Flair Airlines has been ordered to pay a passenger almost $2,000 in compensation for losing her luggage.

The consumer’s victory marks at least the second time this year B.C.’s civil resolution tribunal has agreed to hear a complaint under the new federal Air Passenger Protection Regulations instead of sending the case to the Canadian Transportation Agency.

“Overall, I’m very happy that the CRT is hearing these matters,” said Gabor Lukacs, president and founder of Halifax-based Air Passengers Rights. “It’s a positive development.”

He said the tribunal member who ruled in favour of the passenger in granting her compensation in total of $1,839.11, plus the $125 filing fee, committed “two oversights” of the Montreal Convention, the international law which governs air passenger rights.

“It was done by a tribunal member who was not an expert in passenger rights but someone who certainly cares to do justice,” he said.

Alaura Hulewicz sued Flair, a low-cost airline based in Edmonton, after a bag she paid $105 to fly with her from Edmonton to Vancouver in March 2020 didn’t arrive.

She asked for $2,325 for contents of the bag, which she said included books, clothing, makeup and hair products, $98.91 for interim necessities and the $105 for the extra bag fee, about $2,500 in total. (The limit allowed to be claimed for lost luggage under the Montreal Convention is $2,322.)

Flair in its submissions to the tribunal argued the Canadian Transportation Agency had exclusive jurisdiction over the dispute, according to its tariff, which included the “contract of carriage” for Hulewicz’s flight.

Plus, its lawyer, in a brief submission said Flair couldn’t compensate the passenger for packed items for which she couldn’t produce a sales receipt.

Tribunal member Micah Carmody ruled the tribunal did have jurisdiction for this claim because “this is a claim for damages for breach of contract.”

Referring to an earlier decision, Carmody ruled that the Canadian Transportation Agency doesn’t have exclusive jurisdiction for airline disputes. He ruled that Flair had to refund the $105 extra baggage fee and compensate the passenger the $98.91 for interim expenses (even though Flair said the tariff included a $50 limit).

Carmody allowed $1,635.20 for the claim for the luggage contents because the toiletries were used and therefore subject to a 30 per cent discount for replacement value.

Lukacs said the tribunal member erred in discounting the replacement values because the Canadian Transportation Agency had previously ruled that airlines could not do that under the Montreal Convention.

And he said Flair was incorrect to limit interim expenses to $50 a day or to request receipts for lost luggage contents, both contrary to the Montreal Convention.

“Flair was misleading the passenger,” he said. “The airlines are always trying their luck.”

“it doesn’t matter what it says in the tariff because the international law takes precedence,” he said.

Calls left with Flair and with Hulewicz weren’t returned.

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Source: https://canadianaviationnews.wordpress.com/2021/03/19/passenger-successfully-sues-flair-airlines-for-almost-2000-for-lost-bag/