Bagage perdu: Faq

Compensation payable under the Montreal Convention or the Tariff must be “paid in the form of cash, cheque, credit to a passenger’s credit card, or any other form acceptable to the passenger.” Travel vouchers are mere goodwill gestures, and do not relieve the airline from paying compensation.

• Decision No. LET-C-A-83-2011 of the Canadian Transportation Agency

The first carrier and the last carrier are jointly and severally liable for baggage-related claims. The first carrier cannot insist that you claim damages from the last carrier. You should tell the first carrier that it must compensate you based on the following precedent:

• Lukács v. WestJet, Decision No. 420-C-A-2014

Your claim is for lost baggage. Article 17(3) of the Montreal Convention provides that a checked baggage is deemed lost for the purposes of compensation if it has been missing for more than 21 days.

• Scordo v. Air Canada, Decision No. 36-C-A-2018, para. 27

The Montreal Convention does not require giving the airline notice within a certain amount of time for claim for loss of baggage; however, you can commence a legal action only within 2 years of your flight. You should tell the airline that it must compensate you based on the following precedent:

• Gibbins v. Air France, Decision No. 426-C-A-2013, para. 73

The amount of compensation payable for loss of checked baggage cannot be reduced as a result of “depreciation” of the lost items. You should tell the airline that it must compensate you for the replacement value of the items based on the following precedents:

• Saleem v. Air Canada, Decision No. 319-C-A-2007, para. 39
• Qbibi v. Royal Air Maroc, Decision No. 168-C-A-2008. para. 12

If the airline accepts checked baggage for transportation, it cannot absolve itself from liability for the loss of certain property which is not acceptable for transportation, with or without its knowledge. The airline can avoid liability for loss to your baggage only if it proves that the “damage resulted from the inherent defect, quality or vice of the baggage.” The burden of proof is on the airline, and it is a very heavy one. You should tell the airline that it must compensate you based on the following precedents:

• McCabe v. Air Canada, Decision No. 227-C-A-2008, paras. 24
• Lukacs v. Air Canada, Decision No. 208-C-A-2009, para. 25
• Kouznetchik v. American Airlines, Decision No. 99-C-A-2011, paras. 46-47
• Lukacs v. United, Decision No. 467-C-A-2012, paras. 94-95

The airline is liable for loss of the contents of your checked baggage regardless of what the terms and conditions say. You should tell the airline that it must compensate you based on the following precedents:

• Muoneke v. Compagnie Nationale Air France, 330 Fed. Appx. 457
• United States DOT Advisory (74 Fed. Reg. 14837-38)
• Société Air France, Violations of Article 17 of the Montreal Convention and 49 U.S.C. § 41712, Consent Order issued by the Department of Transportation, Docket OST 2010-0005
• Lukacs v. WestJet, Decision No. 477-C-A-2010
• Lukacs v. Air Canada, Decision. 291-C-A-2011

Providing receipts is not the only way to prove your damages, although it is the easiest one. A statutory declaration or a sworn affidavit setting out the losses and the reasons for the absence of receipts is sufficient as long as the losses themselves are reasonable in the circumstances. You should send the airline such a declaration or affidavit, and tell the airline that it must compensate you based on the following precedents:

• MacGillivary v. Cubana, Decision No. 308-C-A-2010, paras. 36-38
• Cankech v. Brussel Airlines, Decision No. 244-C-A-2014, para. 23

Article 22(5) of the Montreal Convention provides that the liability limit can be exceeded if you prove, in addition to your damages, that:

• the damage resulted from an act or omission of the carrier, its servants or agents;
• the act or omission was done with intent to cause damage or recklessly and with knowledge that damage would probably result; and
• the servant or agent was acting within the scope of their employment.

Relevant case law:

• Connaught Laboratories Ltd. v. British Airways, 2002 CanLII 4642 (ON SC)
• Connaught Laboratories Ltd v. British Airways, 2005 CanLII 16576 (ON CA)
• Mudrinic v. Air Serbia, Decision No. 8-C-A-2018, paras. 24-29

In the case of loss of baggage, the following types of damages are recoverable:

• replacement of the content of the baggage and the suitcase itself
• reasonable interim expenses incurred before the baggage was declared or deemed to be lost
• inconvenience and loss of part of the purpose of the trip caused by the baggage delay.

Relevant case law:

• Axel Walz v. ClickAir, European Court of Justice, Case C‑63/09, para. 29