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18 June 2014
In September 2011 Alton A Robotham booked a seven-day trip to Jamaica with WestJet. He appeared at the airport on the appointed day and obtained a boarding pass on the strength of his Canadian citizenship card.
After a week in Montego Bay, he presented himself for boarding at the airport. The WestJet counter representative asked Robotham for his passport, but he did not have it. Instead, he presented his Canadian driver's licence, health card and social insurance card.
The WestJet duty manager was called over and advised the plaintiff that this would not suffice. Robotham protested, arguing that the citizenship card alone had been sufficient for him to travel to Jamaica. He also threatened to sue WestJet if he could not board the flight, as he had an urgent work project to attend to at home. The duty manager changed the restrictions on Robotham's ticket so that he could use it on a later date when he returned with a valid passport.
For the next two weeks Robotham did not determine whether another airline would carry him to Canada; nor did he seek an emergency Canadian passport. Instead, on October 9 2011, he rebooked his return online and turned up at the airport with a Jamaican passport and his Canadian citizenship card. He was successfully repatriated. He then sued WestJet for breach of contract, claiming damages for:
The Ontario Superior Court of Justice(1) began its analysis by setting out WestJet's statutory requirement to thoroughly screen passengers travelling to Canada to ensure that when they present themselves to a Canadian Border Service Agency (CBSA) officer in Canada, they will be permitted to enter the country.
It also noted that WestJet's publicly filed tariff placed the onus on passengers to obtain all necessary travel documents.
It then turned to the Immigration and Refugee Protection Act, SC 2001, c C-27, which provides that air carriers "must not carry to Canada a person who is prescribed or does not hold a prescribed document or who an officer directs cannot be carried". The court described in some detail the adverse consequences that air carriers face should they not comply with this provision (including fines and the obligation to remove the inadmissible passenger from Canadian soil).
As it is required to do by legislation, the CBSA publishes the Guide for Transporters, which provides direction to air carriers on the practicalities of passenger screening. The guide provides, among other things, that
"To be accepted for travel, Canadian citizens … must be able to produce satisfactory evidence of their identity and status. … A passport is the only reliable and universally accepted identification document, and it proves that they have a right to return to Canada. [Airlines] may require travellers to present a passport. Therefore, Canadian citizens who present other documents, such as ... citizenship cards … may face delays or may not be allowed to board the [aircraft]...
A Canadian citizenship certificate is not a travel document."
In the course of the trial, a WestJet employee testified that the CBSA's migration integrity officers had encouraged airlines to be vigilant in screening passengers travelling from Jamaica to Canada because they had encountered difficulties with passengers substituting photos on Canadian citizenship cards. The court heard evidence that the officers based in Jamaica had sent correspondence to WestJet recommending that it always deny boarding to passengers who present only a Canadian citizenship card as proof of their right to enter Canada.
In considering this evidence, the court found that WestJet did not act unreasonably by denying boarding to Robotham, and that it was following directions of the CBSA. In support of this finding, he cited Tsanova v Austrian Airlines, 2007 QCCQ 11463 (where the court held that a Canadian citizenship card, a heath card or other similar government-issued documents do not prove a right of entry into Canada), as well as Bousiba v Air France, 2009 QCCQ 11660 and Turner v Air Transat AT Inc, 2013 QCCQ 16411 (for the propositions both that it is passengers' responsibility to ensure they have the required travel documents and that air carriers are not liable for denying boarding when these documents are not presented at the time of boarding).
The court also noted that in all of the above cases, the problem with the travel documents arose on the return leg of the itinerary.
For the above reasons, the court found that there was no liability for breach of contract on the part of WestJet. It also rejected a claim for negligence against the airline, arguing that only a contractual duty arose in this case and that the airline had no duty of care in tort towards the passenger in these circumstances.
As is the custom in Canada, the court assessed the damages even though the claim was dismissed, a step which would have been relevant if the ruling on liability were reversed on appeal.
As to the C$30,000 claimed for loss of income on his project, the court found that the reason that Robotham had lost the contract was that he had refused to hire a contractor that his client wished to be retained on the project, not because of the two-week delay. Accordingly, this loss of income was not attributable to the delay that Robotham experienced in returning to Canada.
As to the C$5,681 claimed for moneys payable to subcontractors as a result of the delay, the court found that the invoices in question were two and a half years old and had never been paid. Moreover, Robotham claimed that the work performed by these subcontractors was shoddy in any event, and that he would not have paid these accounts on that basis. Accordingly, there was no avenue for recovery in this respect either.
Finally, the plaintiff claimed C$1 million in damages for "foreseeable losses" (as he termed them) - which amounted to the loss of experience on the project that would have translated into future work on his construction business. In dealing with this claim, the trial judge cited Hadley v Baxendale [1843-60] All ER Rep at 461, in which the court held that:
"Where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally, i.e., according to the usual course of things, or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it."
The court found that since Robotham did not advise WestJet of the scope of the possible damages at the time he entered into the contract of carriage, it was not aware of the possible business projects of the plaintiff and how they might be affected by a delay of his trip. The court thus found that no damages were awardable under this head either.
The case was dismissed.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email (email@example.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.
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