Whatever you think of the European Union, the Greek economy, Brexit, and the E.U.’s various legal and constitutional policies, the European Court of Justice has written two judgments on practical topics. They may well be relevant to your practice. If so, they are persuasive authority. They are reported in the (English) Weekly Law Reports.
First Topic: Written Notices before Suit
Canadian legislatures love stealthily to remove good causes of action. Alberta’s Municipal Government Act and some federal legislation are full of provisions barring suit unless your client gave notice in writing of the claim, within a very short period of time (maybe as short as 7 days).
A similar provision is found in the Montreal Convention, more properly titled International Convention for the Unification of Certain Rules for International Carriage by Air. One of its clauses is calculated to prevent passengers whose baggage is lost or damaged, from suing. It does so by requiring that passenger to “complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt” (or 21 days if the claim is for delay). Then it says “every complaint must be made in writing and given or dispatched within the times aforesaid …”
An astute Finnish traveller found on arrival that items were missing from her checked luggage. The same day, she telephoned the airline and gave full details. The telephone representative of the airline keyboarded all that into the airline’s computer system. Two days later, the passenger phoned the airline to get a certificate of the loss to submit to her insurer, and without further discussion, the airline sent the certificate to her. Later a subrogated suit in her name was brought, but the airline defended, arguing that she had not filed a written claim within 7 days (or 21 days). The highest court in Finland referred the matter to the Court of Justice of the European Union, who found for the passenger.
The E.C.J. said that these missing items were “damage to baggage”. It also said that the timely notice must be in writing and that an oral one would not do.
But then the Court discussed what is a claim “in writing”. All through history, “writing” has been any method of symbols to record thoughts, on all sorts of media: clay tablets, papyrus, vellum, paper, and so forth. “Writing” refers to the finished recorded state of the text, not to its inspiration or authorship. The author of a document and the scribe or stone-carver who preserves it, are often different people, but the result is still writing. Prohibition of oral complaints is to give better proof. The ordinary use of “writing” is much broader than ink on paper. A fax or an email is writing.
Air travel is rapid, and airlines must and do, heavily use electronic communications. An express aim of the Montreal Convention is to protect the interests of consumers. Many businesses store their information electronically. This airline keyboarded the baggage complaint onto the hard drives of its computers, and left a good electronic trail, in writing. The airline had and has full control of and access to, that record. The issue of the insurance certificate 2 days later proves that.
The only remaining issue is whether it matters that an airline employee, not the passenger, keyboarded the information. The Convention does not say that the passenger must do the writing, only that the complaint must be in writing. Nor does that Convention call for a signature or any particular method of delivery, nor specify how to prove the complaint. Had this passenger dictated a complaint to her secretary, who typed it out and delivered it to the airline, clearly that would have sufficed, whether or not the passenger herself signed or initialled the note to the airline.
Another example by the court. What if some other passenger phoned the airline’s baggage phone number from the remote airport of arrival, and the person phoned sent off an email to the main office of the airline? That claim would have sufficed. If the remote airfield had limited hours and personnel, and that airline only flew into there every few days, getting a note written by the passenger within 7 days would be impossible.
The issue is who is complaining and whether there is writing, not who is the scribe. Otherwise the phone number provided by an airline for baggage complaints would be nothing but a trap. If the telephone agent records it all and says that she has done so, why should the customer duplicate all that effort with a letter? The Convention must be interpreted purposively.
The reasoning in this judgment goes far beyond lost luggage, though of course one must look carefully at the exact wording of the relevant legislation (or contract) in each case. Legislation on time limits to give notice of a slip and fall surely does not require someone in a hospital bed with a broken hip to handwrite or personally keyboard and mail a letter within (say) 7 days. Surely this case would suggest that it is enough if the patient knows that a nurse or relative or co-worker has done so, or that the supermarket or municipal or federal government office where the slip and fall occurred, has created a written record of the oral complaint.
The E.C.J. does not exactly say this, but surely the claimant who is told over the phone that the information has all been recorded by the intended recipient in writing, ratifies that writing and adopts it as his or her own.
This “written claim” case’s name and cite (stripped of two umlauts) are Keskinainen Vakuutusyhtio Fennia v. Finnair Oyi (ECJ) [2018] 1 WLR 4407 (Apr 12).
Second Topic: Who is a Consumer?
Canadian legislatures also like to pass legislation giving a “consumer” all sorts of legal rights which others, such as businesses, do not have. Sometimes the Act says little to define who is a “consumer”. Even where the Act does define it, the definition may not exclude things; it may only say what the word “includes”. There is an old rule of interpretation presuming that (unless otherwise stated) a statutory definition only adds to dictionary meanings of the word defined. It does not remove or narrow such dictionary meanings.
An Austrian tried to sue Facebook for not protecting his personal data. It was necessary that he be a “consumer”, to sue in an Austrian court. He got a great deal of publicity for his claim, and sought more. He got more and more people to assign similar claims to him to bring against Facebook, and stood to make money from that litigation. He partly used his Facebook accounts for professional purposes or for promoting books which he wrote and sells, talks he gave (sometimes for money), and blogs or other electronic postings. So Facebook argued that he was not a consumer, so the court had no jurisdiction.
The relevant E.U. Regulation did not define “consumer”, but did say that the matter had to be outside the claimant’s trade or profession.
The top Austrian court referred to the E.C.J. how much (if any) of this could be as a “consumer”.
The E.C.J. noted that the word “consumer” was used by the Regulation about specific individual contracts, not about how the individual typically spends his time or efforts. So in a single day an individual may be making some consumer contracts and some trade or professional contracts. The question is the purpose of that particular contract.
If the aim of a particular contract is both purposes, it may not be a consumer contract unless the role of the trade or profession is small or marginal. The exclusion of “trade or profession” means that profit-making connections would exclude consumer status, even if the particular contract was not to make money.
The nature of a particular contract or relation between two parties can evolve over time. However, such evolution must be found only narrowly and carefully, in exceptional circumstances. Foreseeability and legitimate expectations at the outset of the relationship must get heavy weight. Many a person who opens a purely private Facebook account, over time may add some publicity or discussion about his or her professional or money-making activities without losing consumer status. (A lot of discussion about Facebook pages vs. Facebook accounts and class actions is omitted.) Use of the Facebook facilities to raise some money to help fund the existing litigation about the private (consumer) account did not remove the contract’s “consumer” status.
The name and cite of this decision are Schrems v. Facebook Ireland (ECJ) [2018] 1 WLR 4343 (Jan 25)..
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
