Decision No. 1-C-A-2022

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding a refusal to transport and a reservation cancellation.

[2] The applicants seek a total of CAD 2,874.22 in compensation, broken down as follows:

• CAD 2,111.32 for the cost of purchasing two new tickets with the respondent to travel on August 14, 2019;
• CAD 482.90 for the cost to reschedule their WestJet flights; and
• CAD 280 for the cost of the taxi fare to and from the Nice Côte d’Azur airport (Nice airport).

[3] The Agency will address the following issue:

Did the respondent properly apply the terms and conditions set out in its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada (Except the United States) on the Other Hand, CTA(A) No. 4 (Tariff), with respect to the refusal to transport and the cancellation of reservations, as required by subsection 110(4) of the ATR?

[4] For the reasons set out below, the Agency finds that the respondent properly applied the terms and conditions set out in Rules 6.1e) and 12c) of its Tariff relating to the refusal to transport and the cancellation of reservations respectively. Therefore, the Agency dismisses the application.

BACKGROUND

[5] The applicants purchased round-trip tickets with the respondent to travel from Nice, France, to Montréal, Quebec, departing on August 12, 2019, and returning on August 20, 2019. The applicants had also purchased separate round-trip tickets with WestJet to travel from Montréal to Winnipeg, Manitoba.

[6] In Nice, Sarah Stiny arrived at the check-in counter with a valid German passport and a recently expired Canadian passport. The respondent’s check-in agent informed Sarah Stiny that additional documentation was required in order to travel and they were asked to obtain an Electronic Travel Authorization (eTA) before the check-in counters closed for the flight.

[7] Sarah Stiny applied for and obtained a special authorization from the Canadian authorities, as an eTA was not the appropriate document in the circumstances. However, the authorization was received after the check-in counters had closed for the flight and, therefore, they were refused transportation on August 12, 2019. The applicants then had to purchase two new tickets with the respondent, at a cost of CAD 2,111.32, to travel to Montréal on August 14, 2019. They also had to reschedule their WestJet flights to and from Winnipeg at a cost of CAD 482.90.

[8] On August 14, 2019, Sarah Stiny was allowed to board the respondent’s flight to Montréal with the special authorization that was issued by the Canadian authorities.

[9] The respondent refunded the applicants the applicable taxes for their unused flight segment in the amount of CAD 55.98.

PRELIMINARY MATTER

Negligence, inconvenience, pain or suffering

[10] The applicants state that the respondent’s conduct amounts to gross negligence and that they experienced a lack of human kindness, additional stress and anxiety due to the actions taken by the respondent.

[11] The Agency is not a court of general jurisdiction. It is a creature of statute and may only make awards within the authority granted to it by the Canada Transportation Act, SC 1996, c 10 (CTA). As indicated in Decision No. 185-C-A-2003 (Yehia v Air Canada), the Agency may only award compensation to a passenger for the expenses that were incurred directly from the carrier’s failure to properly apply the terms and conditions of carriage set out in its Tariff. Unlike a court of general jurisdiction, the Agency cannot order compensation for loss of income, pain or suffering, as stated in previous decisions, such as Decision No. 18-C-A-2015 (Enisz v Air Canada), Decision No. 55-C-A-2014 (Brine et al v Air Canada) and Decision No. 18-C-A-2019 (Meyer v Wow).

THE LAW AND RELEVANT TARIFF PROVISIONS

[12] 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.

[13] If the Agency finds that an air carrier has failed to properly apply its tariff, subsection 113.1(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 that are applicable to the service it offers and that were set out in the tariff.

[14] The relevant provisions of the respondent’s Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicants

[15] The applicants argue that the respondent did not properly apply its Tariff when it incorrectly refused to transport Sarah Stiny. Upon arrival at the respondent’s check-in counter, Sarah Stiny was asked to apply for an eTA. They applied for an eTA but at 11:41 a.m. they received an email from Citizenship and Immigration Canada stating that an eTA was not required but that a special authorization from Canadian authorities to travel to Canada on an expired Canadian passport was needed to travel.

[16] Sarah Stiny then applied for the special authorization and upon receiving it at 12:33 p.m., they returned to the respondent’s check-in counter for the flight to Montréal. The check‑in agent reviewed the special authorization, but proceeded to inform Sarah Stiny that an eTA was still required to board the flight to Montréal. According to the applicants, there was no mention that the special authorization was received too late for them to board their flight.

[17] The applicants further argue that the respondent did not act in good faith when it failed to understand the clear wording set out in the emails presented by Sarah Stiny to the check-in agents. The applicants claim that it is a well-known fact that Canadian citizens are not eligible to apply for an eTA.

[18] The applicants argue that on August 14, 2019, an eTA was never asked for nor was one provided. The applicants’ request for a refund was denied by the respondent, as it was still of the opinion that the Canadian Border Services Agency would require Sarah Stiny to have an eTA to enter the country.

[19] The applicants submit that upon obtaining the special authorization from the Canadian authorities, Sarah Stiny had the appropriate travel documents to enter Canada given that they were able to travel without an eTA on August 14, 2019.

[20] The applicants state that the Tariff rules referred to by the respondent should not be considered alone and consideration should be given to the conduct displayed by the respondent.

[21] The applicants argue that due to the incompetence of the respondent’s check-in agents, Mary Graham-Stiny was left in a difficult position and concluded that it was not right to leave Sarah Stiny behind and, accordingly, chose to stay back as well.

The respondent

[22] The respondent argues that it properly applied the terms and conditions of carriage set out in its Tariff and that its airport representative acted correctly. The respondent states that it is the traveller’s responsibility to comply with government travel requirements, to check the necessary travel documents, and to present them at all control points during travel, including at check-in.

[23] The respondent submits that dual Canadian citizens cannot travel through Canada by air with a non-Canadian passport and that they are required to hold a valid Canadian passport to board their flight. The respondent indicates that dual Canadian citizens may apply for a special authorization enabling them to travel with an expired Canadian passport. The respondent states that this information is readily available on the Canadian government’s website, which the respondent submitted as evidence.

[24] The respondent argues that as the travel documents presented at the time of check-in were not in compliance with the Canadian government’s entry requirement, Sarah Stiny was informed that the situation needed to be resolved prior to the closure of the flight, but they failed to do so.

[25] The respondent states that Sarah Stiny received the special authorization issued by the Canadian authorities on August 12, 2019, at 12:33 p.m., after the closure of Flight No. TS679, which was scheduled to depart from Nice at 1:15 p.m. local time. It adds that the check-in counters for the flight opened at 9:15 a.m. local time and closed at 12:15 p.m. The respondent asserts that Sarah Stiny failed to provide the special authorization issued by the Canadian authorities prior to the closure of Flight No. TS679 and, as a result, transportation was properly refused.

[26] The respondent states that Sarah Stiny was able to travel on August 14, 2019, as they were holding the special authorization issued by the Canadian authorities at time of check-in.

[27] The respondent indicates that the applicants were required to purchase new tickets in order to board the next available flight, Flight No. TS639, on August 14, 2019, as their initial reservation did not allow for cancellations or changes 24 hours before the scheduled departure date.

[28] In addition, the respondent states that the only reason that the applicants had to purchase new tickets and reschedule their departure was due solely to their own actions and/or omissions and that, therefore, it is not obligated to refund any of the extra expenses incurred by the applicants.

ANALYSIS AND DETERMINATIONS

[29] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

Refusal to transport

[30] The applicants arrived at the respondent’s check-in counter without all the required travel documents to enter into Canada. Rule 10.5a) of the Tariff states that each passenger is responsible for obtaining the necessary travel documents and complying with the laws of each country to which they are travelling.

[31] In this case, the respondent refused to transport Sarah Stiny as they did not have the correct documentation before the check-in cut-off time for their flight. Rule 6.1e) of the Tariff states that the carrier may refuse to carry or cancel the reserved space of any passenger when the passenger is not in possession of passports, visas or other required travel documentation.

[32] The Agency has addressed the refusal to transport issue due to travellers not having the correct documentation in past Agency decisions such as Decision No. 22-C-A-2019 (Li et al v Air Canada), Decision No. 37-C-A-2019 (Lyell et al v Air Canada) and Decision No. 178-C-A-2008 (Reeves v Air Canada), finding such refusal to be appropriate.

[33] Given that Sarah Stiny did not have the correct documentation upon arrival at the check‑in counter and did not receive the special authorization required until after the check-in cut-off time for the flight, the Agency finds that the respondent properly applied the terms and conditions set out in Rule 6.1e) of its Tariff when it refused to transport Sarah Stiny.

Incorrect advice as to the required travel documents

[34] As Sarah Stiny’s Canadian passport was expired, a special authorization from Canadian authorities was required in order to travel to Canada. The evidence establishes that the applicants were told by the respondent’s agent that Sarah Stiny needed to provide an eTA in order to be able to travel. Based on the evidence provided, only a special authorization from Canadian authorities was required to travel, which was ultimately received following an unsuccessful application for an eTA. This was received, however, only after the check‑in cut-off time.

[35] A key element of the applicant’s claim is the inaccurate advice given by the respondent’s agents. Rule 6.1h) of the respondent’s Tariff states that the carrier will not be liable for any aid or information given by any agent or employee of the carrier to any passenger in connection with obtaining necessary travel documents, or for the consequences to any passenger resulting from their failure to obtain such documents. Further, Rule 10.5b) of the Tariff states that any information given by the carrier to a passenger relating to immigration, customs or health requirements will be given without any representation as to its accuracy and the carrier will not be liable for any damages or inconvenience suffered by the passenger as a result.

[36] Based on the above, while the agent of the carrier may have provided Sarah Stiny with incorrect information as to the documentation required to travel, as in Decision No. 91‑C‑A-2021 (Vokey et al v Air Canada), the Agency accepts that it is the travellers’ responsibility to ensure that they comply with the government’s travel requirement of the country that they are travelling to and present the necessary travel documents. This information is readily available on the Government of Canada’s Immigration, Refugees and Citizenship Canada website.

[37] In Decision No. 37-C-A-2019 and Decision No. 91-C-A-2021, the Agency addressed the issue of misinformation provided by an agent of the carrier to the applicant, upon which the applicant has relied to their detriment. In these decisions, the Agency found that the carrier was not liable for the misinformation that its agent provided to the applicant as per the rule in the carrier’s Tariff.

Reservation cancellation

[38] Sarah Stiny applied for a special authorization from the Canadian authorities but received it after the check-in cut-off time for the flight. Rule 12c) of the respondent’s Tariff states that all reservations are subject to cancellation without notice if the passenger does not present themself at check-in at least 60 minutes prior to the scheduled departure time of the flight or at the boarding gate at least 30 minutes prior to the departure time of the flight.

[39] Given that the flight was scheduled to depart at 1:15 p.m. local time, that the check-in counters for the flight closed at 12:15 p.m. and that Sarah Stiny did not receive the special authorization required to travel until 12:33 p.m., the respondent cancelled the original reservation for both applicants and they were required to purchase new tickets. The applicants had purchased economy class tickets which did not allow for any refunds within 24 hours of the departure. Based on the above, the Agency finds that the respondent properly applied the terms and conditions set out in Rule 12c) of its Tariff with respect to the cancellation of reservations. Accordingly, pursuant to the Tariff, the applicants are not entitled to a full refund of their tickets.

Expenses

[40] The applicants seek compensation for their rescheduled WestJet flights and taxi fares in Nice as they were unable to travel on their original date with the respondent.

[41] Rule 10.5a) of the Tariff states the carrier is not responsible for any loss, damage or expense suffered or incurred when a passenger is refused transportation. Accordingly, the respondent is not liable for the expenses that were incurred by the applicants.

CONCLUSION

[42] Based on the above, the Agency finds that the respondent properly applied the terms and conditions set out in Rules 6.1e) and 12c) of its Tariff relating to the refusal to transport and the cancellation of reservations respectively. Therefore, the Agency dismisses the application.

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 APPENDIX TO DECISION NO. 1-C-A-2022

Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada (Except the United States) on the Other Hand, CTA(A) No. 4.

RULE 6. CARRIAGE OF PASSENGERS

6.1 Refusal to transport – Removal ofpassengers

The Carrier may refuse to carry or cancel the reserved space of, or may remove enroute from any flight any passenger when:

….

e) The passenger refuses, upon request, to provide positive identification, or is not in possession of passports, visas or other required travel documentation.

….

h) The passenger fails to comply with all laws, regulations, orders, demands or travel requirements of countries to be flown from, into, or over, and with all rules, regulations and instructions of the Carrier. The Carrier shall not be liable for any aid or information given by any agent or employee of the Carrier to any passenger in connection with obtaining necessary documents or complying with laws, regulations, orders, demands, requirements or instructions, whether given orally or in writing, or otherwise, or for the consequences to any passenger resulting from his failure to obtain such documents or to comply with such laws, regulations, orders, demands, requirements or instructions.

….

RULE 10. TRAVEL DOCUMENTS

….

10.5 Passports and Visas – Responsibility of Passenger

a) Each passenger desiring transportation across any international boundary shall be responsible for obtaining all necessary travel documents and for complying with the laws of each country from, through or to which he desires transportation, and unless applicable laws provide otherwise, shall indemnify the Carrier for any loss, damage, or expense suffered or incurred by the Carrier by reason of such passenger’s failure to do so. The Carrier shall not be liable for any aid or information given by any agent or employee of the Carrier to any passenger in connection with obtaining such documents or complying with such laws, whether given orally or in writing or otherwise; or for the consequences to any passenger resulting from his failure to obtain such documents or to comply with such laws.

b) The Carrier may refuse to carry any passenger who does not possess required travel documentation. In the event that an order is issued by a competent authority for the deportation or rejection of any passenger on any flight, the passenger shall indemnify and hold harmless the Carrier from and against any and all costs, charges and expenses, including transportation expenses or fines imposed or incurred as a result of such an order. Any information given by the Carrier to a scheduled user, passenger or shipper relating to immigration, customs or health requirements shall be given without any representation as to its accuracy and the Carrier shall not be liable for any damages or inconvenience suffered by a scheduled user or any passenger and/or shipper as a result of its or their reliance thereon.

….

RULE 12. CANCELLATION OF RESERVATIONS (SUBJECT TO RULE 21)

All reservations are subject to cancellation without notice:

….

c) If the passenger does not present himself at check-in at least 60 minutes prior to scheduled departure time or at the boarding gate at least 30 minutes prior to departure time.

….

If the Carrier refuses to transport the passenger for any of the reasons stated above, even if a reservation was confirmed, the reservation may not be accepted for the flight specified. Subject to applicable fare rules and conditions, no refund will be due. Cancellation will apply to all segments in the itinerary.