Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff claimed just over $9,400 from Air Canada for two pieces of checked luggage lost on an overseas flight returning to Canada.

• Air Canada paid the plaintiff just over $2,300 and argued this exceeded their liability under the contract of carriage and the Montreal Convention, as incorporated by Canadian law.

• The trial was adjourned when the plaintiff could not attend due to hospitalization; his son appeared and explained the absence.

• The trial judge awarded Air Canada $800 in costs for the adjournment, payable forthwith, despite no fault on the plaintiff’s part.

• The plaintiff appealed the costs award, arguing it was not mandatory in a true “no fault” scenario; Air Canada argued the decision was within the trial judge’s discretion.

• The appellate court found no error or unreasonableness in the trial judge’s decision and dismissed the appeal, upholding the $800 costs award to Air Canada.

Background and claim

Samir Abou Hachem sued Air Canada for just over $9,400 in relation to two pieces of luggage that he checked in on an overseas flight returning to Canada, which never arrived. Air Canada had already paid him just over $2,300 and defended the claim on the basis that this payment exceeded their liability as set out in the contract of carriage and under the Montreal Convention (the Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309), as incorporated into Canadian law by the Carriage by Air Act, R.S.C. 1985, c. C-26.

Procedural history and adjournment

The matter proceeded to trial on April 9, 2024, in the Alberta Court of Justice Civil Division. On that day, Mr. Abou Hachem was unable to attend because he was in hospital. His son appeared on his behalf and reported his father’s hospitalization. Although no documentation was provided at the time, Judge Sharek accepted the explanation and adjourned the matter. Judge Sharek awarded $800 in costs “thrown away,” being the scheduled tariff costs, to Air Canada, payable forthwith. Mr. Abou Hachem appealed this costs award.

Appeal of the costs award

Air Canada resisted the appeal, arguing that there was no reversible error and that the decision was within the reasonable discretion of the trial judge. The appellate court considered whether there was a palpable and overriding error in the factual basis for the costs decision, a misdirection on legal principles, or whether the decision was unreasonable.

Judicial analysis and discussion of legal principles

Justice Devlin reviewed the cases cited by the trial judge—Incandescent Revolution Manufacturing Co. v. Gerling Global General Insurance, 1989 CanLII 3385 (AB KB), and Goddard v Day, 2000 ABQB 799—and found that the trial judge slightly overstated the principle that costs are to be awarded in all adjournment scenarios. In the present case, Mr. Abou Hachem’s absence was due to sudden medical incapacitation, with no element of deliberate choice. Justice Devlin noted that while awarding costs in a true “no fault” scenario is not mandatory, it is within the reasonable range of outcomes if the judge considers the relevant facts, including the impact on the defendant and the merits of the underlying claim.

Outcome

Justice Devlin concluded there were no factual misapprehensions or legal errors. The trial judge accepted Mr. Abou Hachem’s explanation for his absence and made no mistake in doing so. Although the trial judge may have limited himself in his reading of the authorities, the decision was not unreasonable. The appeal was dismissed, and the $800 costs award to Air Canada stands. The successful party in this appeal was Air Canada, and the amount awarded in its favor was $800. No other amount was ordered or granted beyond this costs award.