Decision No. 1-C-A-2020

SUMMARY

[1] The applicant filed an application with the Canadian Transportation Agency (Agency) against United Airlines regarding the rerouting of the final flight segment of the applicant’s itinerary from Perth, Australia, to Calgary, Alberta, via Singapore, Republic of Singapore, and San Francisco, California, United States of America, on March 21, 2018.

[2] The applicant is seeking compensation in the form of a refund of CAD 1,015 for the full amount of the return portion of the ticket from Perth to Calgary, less applicable taxes and fees.

[3] The Agency will address the following issues:

• Did United Airlines properly apply the terms and conditions set out in Rule 24 of its International Passenger Rules and Fares Tariff No. UA-1 Containing Local and Joint Rules, Fares and Charges on Behalf of United Airlines, Inc. Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada/Central America/South America and Points Throughout the World, NTA(A) No. 361 (Tariff), with respect to flight delays, cancellations and aircraft changes, as required by subsection 110(4) of the Air Transportation Regulations, SOR/88-58, as amended (ATR)?
• If United Airlines did not properly apply the terms and conditions set out in Rule 24 of its Tariff, what remedy, if any, is available to the applicant?

[4] For the reasons set out below, the Agency finds that United Airlines properly applied the terms and conditions set out in Rule 24(D) of its Tariff, with respect to flight delays, cancellations and aircraft changes, as required by subsection 110(4) of the ATR. Therefore, the Agency dismisses the application.

BACKGROUND

[5] The applicant purchased a return ticket from United Airlines to travel from Perth to Calgary. The return itinerary scheduled for March 21, 2018, was as follows:

• Perth to Singapore on Flight No. 3K132, departing at 12:10 a.m. and arriving at 5:20 a.m.;
• Singapore to San Francisco on Flight No. UA2, departing at 10:00 a.m. and arriving at 9:40 a.m.; and
• San Francisco to Calgary on Flight No. AC8578, departing at 10:40 a.m. and arriving at 2:23 p.m.

[6] It is undisputed by the parties that Flight No. AC8578 was cancelled by Air Canada due to weather conditions in San Francisco.

[7] After arriving in San Francisco, the applicant was rerouted by United Airlines on the following itinerary:

• San Francisco to Denver, Colorado, United States of America, on Flight No. UA1858, departing at 1:20 p.m. and arriving at 4:50 p.m.; and
• Denver to Calgary on Flight No. UA877, departing Denver at 7:20 p.m. and arriving at 10:00 p.m.

PRELIMINARY MATTERS

United Airlines’ request for confidentiality

[8] In its answer filed on August 22, 2019, United Airlines indicates that it wishes to file a confidentiality request on the basis of customer confidentiality for two supporting documents: “Past Date PNR history” and “Flight operational status”. These supporting documents were not filed by United Airlines with its answer.

[9] Section 31 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to all Proceedings), SOR/2014-104 (Dispute Adjudication Rules) outlines the requirements for requests for confidentiality with the Agency. Subsection 31(1) states the following:

A person may file a request for confidentiality in respect of a document that they are filing. The request must include the information referred to in Schedule 17 and must be accompanied by, for each document identified as containing confidential information,

(a)  one public version of the document from which the confidential information has been redacted; and

(b)  one confidential version of the document that identifies the confidential information that has been redacted from the public version of the document and that includes, at the top of each page, the words:
      “CONTAINS CONFIDENTIAL INFORMATION” in capital letters.

[10] On September 4, 2019, United Airlines was advised by the Agency’s Secretariat that the request for confidentiality was incomplete, and United Airlines was provided the opportunity to submit a complete request as per the Dispute Adjudication Rules.

[11] In addition, the applicant objected to this confidentiality request on September 12, 2019.

[12] As United Airlines’ two requests for confidentiality were incomplete and the carrier was provided ample opportunity to file a complete request, the Agency has rendered this Decision based only on the documents filed.

Applicable tariff

[13] The Agency considered whether Air Canada’s International Passenger Rules and Fares Tariff or United Airlines’ Tariff applies to the applicant’s itinerary. While the flight cancellation at issue was coded and operated by Air Canada, evidence submitted by the applicant shows the same flight marketed under Flight No. UA8045, operated by Air Canada.

[14] In Decision No. 287-C-A-2009 (Griffiths v. Air Canada), the Agency stated the following regarding code-share flights:

With respect to Air Canada’s submission that, in a code-sharing arrangement, the terms and conditions of the operating carrier must apply, the Agency reminds the carrier that this position is inconsistent with Agency decisions relating to applications requesting permission to code share. These decisions include the condition that the carrier who sells the transportation to the passenger must apply its own published tariff, on file with the Agency and in effect, even if another carrier operates the flight. [emphasis added]

[15] The applicant’s ticket indicates that United Airlines was the marketing carrier. As such, United Airlines’ Tariff applies in this case.

THE LAW AND RELEVANT TARIFF PROVISIONS

[16] Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[17] If the Agency finds that an air carrier has failed to properly apply its tariff, section 113.1 of the ATR empowers the Agency to direct the carrier to:

(a)  take the corrective measures that the Agency considers appropriate; and

(b)  pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.

[18] Rule 24(B)(4) of United Airlines’ Tariff defines several situations that are considered force majeure, including:

(a)  Any condition beyond UA’s control including, but not limited to, meteorological or geological conditions, acts of God, riots, terrorist activities, civil commotions, embargoes, wars, hostilities, disturbances, or unsettled international conditions, either actual, anticipated threatened or reported, or any delay, demand, circumstances, or requirement due directly or indirectly to such condition;

….

[19] Rule 24(D) of the Tariff addresses force majeure events and states the following:

In the event of a Force Majeure Event, UA without notice, may cancel, terminate, divert, postpone, or delay any flight, right of carriage or reservations (whether or not confirmed) and determine if any departure or landing should be made, without any liability on the part of UA. UA may re-accommodate Passengers on another available UA flight or on another carrier or combination of carriers, or via ground transportation, or may refund any unused portions of the Ticket in the form of a travel certificate.

POSITIONS OF THE PARTIES

The applicant

[20] The applicant alleges that United Airlines demonstrated a total lack of effort in rerouting her in a minimally disruptive way in the face of the cancellation of Flight No. AC8578, and claims that “UA had at least 20hrs to properly reroute Sandra to another flight to Calgary & chose not to do so.”

[21] The applicant alleges that United Airlines was aware of the cancellation of Flight No. AC8578 as early as 3:00 p.m. PDT (6:00 a.m. SGT) on March 20, 2018, and, accordingly, it had the opportunity to reroute the applicant during the layover in Singapore between 5:20 a.m. and 10:00 a.m. SGT.

[22] The applicant also contends that the baggage was only checked for the flight from Singapore to San Francisco because United Airlines knew that, at the time of the check-in in Singapore, the final San Francisco–Calgary segment of the itinerary had been cancelled. The applicant further contends that having been advised to retrieve and re‑check the baggage in San Francisco “to have it tagged to YYC proves that they were aware that the original SFO-YYC flight was cancelled at the very latest when she checked-in @ SIN.”

[23] Additionally, the applicant states that as she was not rerouted on another flight while in Singapore, she should have been rerouted on an earlier departing flight in San Francisco, after having approached the United Airlines customer service counter around 10:30 a.m. PDT. Specifically, the applicant believes that an offer to reroute her should have been made for either Flight No. UA5469 departing from San Francisco at 12:55 p.m. and arriving in Calgary at 4:55 p.m. or on Flight No. UA685, departing from San Francisco at 11:00 a.m. and arriving in Calgary at 6:23 p.m., via Vancouver, British Columbia. The applicant further states that she contacted United Airlines reservation department and confirmed that seats were available on Flight No. UA5469 after it had departed.

United Airlines

[24] In its answer, United Airlines states that it follows an internal process when it reroutes a passenger based on availability and the consent of the passenger. It states that in situations such as the one that the applicant experienced, it offers multiple options but, as it requires consent from the passenger for the new routing, it is necessary for the customer to speak with customer service rather than being automatically rerouted.

[25] In response to the allegation that it failed to reschedule the applicant on an earlier flight, United Airlines states that the applicant had one piece of checked baggage that needed to clear Customs and Immigration after arriving in San Francisco at 10:02 a.m. PDT. It states that it rerouted the applicant on the first available flight from San Francisco after the applicant approached its staff in San Francisco at approximately 11:07 a.m.

[26] Regarding the availability of seats on Flight No. UA5469, it states that as the events in question occurred approximately 18 months prior to the application, it is currently unable to determine seat availability on that flight.

ANALYSIS AND DETERMINATIONS

[27] The onus is on the applicant to prove, on a balance of probabilities, that United Airlines has failed to properly apply, or has inconsistently applied, the terms and conditions of carriage set out in its tariff.

[28] It is undisputed by the parties that Flight No. AC8578 was cancelled due to weather conditions in San Francisco. Rule 24(B)(4)(a) of United Airlines’ Tariff defines “meteorological or geological conditions” as a force majeure event.

[29] The applicant asserts that United Airlines knew of the cancellation of Flight No. AC8578 as early as 3:00 p.m. PDT on March 20, 2018 and, at the latest, based on the status of the applicant’s baggage, upon check-in for the flight from Singapore to San Francisco.

[30] Though the applicant claims that there was availability on earlier flights and that, as a result, re-accommodation should have occurred on one of these flights, the Agency notes that the applicable United Airlines’ Tariff provision—Rule 24(D)—does not provide timelines for re‑accommodation and states that a passenger will be re-accommodated on another available flight, whether on United Airlines or another carrier.

[31] Furthermore, United Airlines’ procedure of not automatically re-accommodating a passenger on another flight without first consulting them would appear to be reasonable in the event that they may wish instead to avail themselves of a refund in respect of an unused portion of the ticket or take a different flight from the first available flight offered, depending on the rerouting options that they might be offered.

[32] The applicant was transported to the final destination indicated on the ticket—Calgary—from the point of departure in Perth, in keeping with United Airline’s Tariff, albeit with a not insignificant delay of approximately 7 hours and 37 minutes.

[33] There is no unused portion of the ticket that could be refunded under United Airlines’ Tariff. Therefore, the Agency finds that United Airlines properly applied the terms and conditions set out in Rule 24(D) of its Tariff, with respect to flight delays, cancellations and aircraft changes, as required by subsection 110(4) of the ATR.

CONCLUSION

[34] The Agency dismisses the application.