Decision No. 10-C-A-2021

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Philippine Airlines and WestJet regarding a schedule irregularity with their connecting flight in Toronto, Ontario.

[2] The applicants each seek CAD 900 for their missed connection and for the lost day.

[3] The Agency will address the following issues:

• Did Philippine Airlines properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. PR-1 Containing Local and Joint Rules, Fares, and Charges on Behalf of Philippine Air Lines, Inc. Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 3, NTA(A) No. 358 (Philippine Airlines’ Tariff), as required by subsection 110(4) of the ATR?
• Did WestJet properly apply the terms and conditions set out in its International/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518 (WestJet’s Tariff), as required by subsection 110(4) of the ATR?

[4] For the reasons set out below, the Agency finds that Philippine Airlines properly applied the terms and conditions set out in Rule 85(B)(2) of its Tariff, as required by subsection 110(4) of the ATR.

[5] The Agency also finds that WestJet properly applied the terms and conditions set out in Rules 30(A)(5)(b) and 65(A) of its Tariff, as required by subsection 110(4) of the ATR.

[6] Therefore, the Agency dismisses the application.

BACKGROUND

[7] The applicants were travelling from Manila, Philippines, to Ottawa, Ontario, via Toronto, on March 5, 2019, with Philippine Airlines and WestJet on an interline itinerary.

[8] The applicants’ Philippine Airlines flight from Manila was delayed arriving in Toronto. When the applicants arrived, a Philippine Airlines agent provided them with a new itinerary as they had been reprotected on a later connecting flight with WestJet to Ottawa by Philippine Airlines, as their late arrival in Toronto was going to cause them to miss their original connecting flight.

[9] The applicants’ original connecting flight with WestJet to Ottawa was delayed, and the applicants went to the departure gate of that flight. However, when attempting to board their original connecting flight, the applicants were informed that their boarding passes were not valid for this flight. At this point, the applicants had missed the flight on which they had been reprotected by Philippine Airlines and they were also unable to take their original connecting flight.

[10] WestJet reprotected the applicants onto a flight that was scheduled to depart the next morning and provided them with hotel accommodation and meal vouchers for the evening.

[11] The applicants each seek CAD 900 for their missed connection from Toronto to Ottawa and for the lost day.

PRELIMINARY MATTERS

Compensation under the Air Passenger Protection Regulations, SOR/2019-150 (APPR)

[12] The applicants request compensation in the amount of CAD 900, submitting that they have read on the Agency’s website that this amount was reasonable for the delay that they experienced in Toronto. The Air Passenger Protection Regulations Highlights on the Agency’s website provides information on compensation for flight delays, provided that it meets the requirements of the APPR. However, the APPR came into force with respect to flight delays on December 15, 2019, and, as such, the Agency does not have the power to order any remedies under the APPR, as the incident occurred prior to that coming into force. Accordingly, the applicants are not entitled to any compensation under the APPR.

Pain and suffering

[13] The applicants seek compensation for the additional day that they lost due to the schedule irregularity. The Agency does not have the jurisdiction to order compensation for pain and suffering in respect of cases that involve alleged contraventions of carriers’ tariff-related obligations, as it may only award compensation to a passenger for expenses that were incurred as a result of a carrier’s failure to properly apply the terms and conditions of carriage set out in the carrier’s tariff.

Customer service issue

[14] The Agency is not a court of inherent jurisdiction, but is a creature of statute. The Agency’s prescribed jurisdiction is limited to determining whether Philippine Airlines and/or WestJet respected the terms and conditions of carriage as they are set out in their tariffs, as stated in Decision No. 635-C-A-2005 (Jenkins v Air Canada) and Decision No. 55‑C‑A-2019 (Patel v Etihad Airways). The Agency is therefore unable to address the customer service issue raised by the fact that the applicants were provided with incorrect information when they asked WestJet agents if they were still checked in for their original connecting flight from Toronto to Ottawa, when they showed their original boarding passes for this flight.

THE LAW AND RELEVANT TARIFF PROVISIONS

[15] 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.

[16] 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.

[17] The relevant provisions of Philippine Airlines’ Tariff and WestJet’s Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES AND FINDINGS OF FACT

The applicants

[18] The applicants submit that when they arrived in Toronto, as they were disembarking the aircraft, they received a new itinerary from a Philippine Airlines agent with no further explanations provided. They add that they then inquired with a WestJet agent as to which itinerary to follow and they were informed that their original connecting flight from Toronto to Ottawa that was scheduled to depart at 9:00 p.m. was actually delayed for two hours and that they should go to the gate for their original connecting flight.

[19] Approximately one hour before boarding, they indicate that they again confirmed with the WestJet agent at the boarding gate if they were still on their originally booked connecting flight from Toronto to Ottawa that was delayed, and the agent confirmed that they were.

[20] The applicants submit that when they attempted to board their original connecting flight, they were informed that their boarding passes were not valid for the flight. At that point, the applicants had missed the flight on which they had been reprotected as well as their original connecting flight, which was delayed.

[21] The applicants submit that they explained the issue that had occurred to a WestJet agent and the agent eventually reprotected them on a flight that was scheduled to depart the next morning and provided them with hotel accommodation for the evening. The applicants state that they were without their baggage for the evening and that they did not have any suitable clothing for travel to the hotel as it was -20 degrees Celsius outside that night.

Philippine Airlines

[22] Philippine Airlines states that the applicants’ flight with Philippine Airlines from Manila to Toronto was delayed due to the late repositioning of the aircraft at Bay 14 in Manila by another aircraft. Philippine Airlines states that in accordance with its “Bill of Rights”, the affected passengers were duly notified of the delay.

[23] Philippine Airlines submits that given the short connection time that the applicants had in Toronto for their original connecting flight to Ottawa, its Toronto office reprotected the applicants on the next available flight with WestJet to ensure that they would be able to take a flight to Ottawa. However, the applicants were not accepted on the flight on which they had been reprotected.

[24] Philippine Airlines states that while it was not responsible for the delay, it had undertaken steps to ensure that the applicants would be able to take a connecting flight.

WestJet

[25] WestJet submits that the applicants had boarding passes for Flight No. WS3478 and that a Philippine Airlines agent provided them with a piece of paper showing handwritten flight information for the flight on which they were reprotected (Flight No. WS374).

[26] WestJet states that the situation was furthered complicated by the fact that Flight No. WS3478, the applicants’ original connecting flight, was delayed departing from Toronto and that the applicants’ boarding passes for that flight would have been accepted had they still had the confirmed tickets on their itinerary.

[27] WestJet states that, according to the applicants, while they were at the boarding gate, they asked the WestJet agent if they were at the correct gate and waiting for the correct flight as per the boarding passes that they were holding. It appears that the agent looked at the boarding passes and confirmed that Flight No. WS3478 was departing from that gate and had been delayed from departing. WestJet adds that the boarding passes were not scanned, nor was the reservation reviewed by the agent. WestJet also indicates that the applicants did not present boarding passes for the flight on which they were reprotected, Flight No. WS374, nor did they present the piece of paper that the Philippine Airlines agent had provided to them with the new flight number and departure time.

[28] WestJet submits that once boarding of Flight No. WS3478 began, the applicants’ boarding passes were scanned and the WestJet agent realized that the applicants had been removed from the flight and that the boarding passes were not valid to board that flight.

[29] WestJet states that this occurred between approximately 11:00 p.m. to 11:15 p.m. on March 5, 2019, and, at that time, Flight No. WS374, the flight on which the applicants had been reprotected, had already closed for departure and, as a result, the applicants were not able to board the flight.

[30] According to WestJet, one of its agents exchanged the applicants’ tickets for tickets for a flight that was scheduled to depart the next morning and also provided them with hotel accommodation and meal vouchers, as a goodwill gesture, given that it was late at night and the confusion that they faced. WestJet argues that it was not required to reprotect the applicants on another flight as, in essence, they would have been considered a late show for Flight No. WS374. However, instead a WestJet agent reprotected them on another flight and provided them with a standard of care that was not the carrier’s responsibility.

[31] WestJet states that the applicants’ baggage, which was tagged for its final destination, was successfully transferred and therefore was not available to be provided to the applicants. It adds that the applicants accepted to be reprotected on another flight, stayed at the hotel and travelled the following morning without further incident.

[32] WestJet argues that the applicants have no out-of-pocket expenses to claim and that any reimbursement of expenses due to the applicants would be the responsibility of the carrier that caused the applicants’ original delay, which is Philippine Airlines. WestJet further argues that it is the responsibility of the passenger to ensure that they know their flight number and boarding gate.

Findings of fact

[33] The applicants’ inbound flight with Philippine Airlines was delayed arriving in Toronto, which resulted in them being reprotected by Philippine Airlines on a later connecting flight than that which was originally on their itinerary, Flight No. WS3478, from Toronto to Ottawa.

[34] The Philippine Airlines agent who reprotected the applicants on a later flight, Flight No. WS374, from Toronto to Ottawa, provided them with the flight information on a piece of paper.

[35] The applicants went to the gate for their original connecting flight, Flight No. WS3478, which was delayed, and not to the gate for the new flight on which they were reprotected, Flight No. WS374. When attempting to board, the applicants were not permitted to board Flight No. WS3478 as they were reprotected on another flight. At that time, they could no longer board the flight on which they had been reprotected as boarding had already closed.

ANALYSIS AND DETERMINATIONS

[36] 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.

Did Philippine Airlines properly apply the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR?

[37] The applicants’ flight with Philippine Airlines from Manila was delayed arriving in Toronto. This delay resulted in the applicants having a short connection time in Toronto to make their flight to Ottawa with WestJet. To ensure that the applicants would make it to Ottawa that evening, Philippine Airlines reprotected them on a later WestJet flight from Toronto to Ottawa in accordance with Rule 85(B)(2) of its Tariff. A Philippine Airlines agent provided the applicants with their new itinerary on a piece of paper as they were disembarking the aircraft in Toronto.

[38] The applicants claim that the agent simply handed them a piece of paper without explaining the details. However, the Agency finds that it would be highly unlikely that the applicants would simply be handed a piece of paper with no details given that Philippine Airlines had just reprotected them on a later flight and that this information would be vital and need to be passed on to the applicants. A picture of the piece of paper that the applicants were given was submitted as evidence, and the Agency notes that the piece of paper contained the names of both applicants and the seat numbers, and stated “PROTECTED WS 374 2315,” which was their new flight number and flight time.

[39] Based on the above, the Agency finds that Philippine Airlines properly applied the terms and conditions set out in Rule 85(B)(2) of its Tariff when it reprotected the applicants on a later WestJet flight, as required by subsection 110(4) of the ATR.

Did WestJet properly apply the terms and conditions set out in its Tariff, as required by subsection 110(4) of the ATR?

[40] Even though the applicants were given their new itinerary, the Agency notes that the applicants still proceeded to go to the gate of their original connecting flight with WestJet, Flight No. WS3478, which was delayed. The applicants asked the WestJet agent if they were still on the flight and simply presented their boarding passes for the flight but apparently did not present, or inform the agent that they had received, the piece of paper with their new flight information from Philippine Airlines. By visually viewing the boarding passes, the agent confirmed that the applicants were still checked in for their original connecting flight. However, the Agency notes that had the applicants also presented the piece of paper with their new flight information to the agent, the agent may have further looked into the applicants’ reservation and informed them that they were actually reprotected on a different flight and needed to go to a different gate.

[41] When the applicants went to board Flight No. WS3478, their boarding passes showed up as invalid in the system. Rule 65(A) of WestJet’s Tariff states that no person shall be entitled to transportation except upon presentation of a valid confirmation number and acceptable photo identification. Given that the applicants had been reprotected on Flight No. WS374, they no longer held valid confirmation numbers for Flight No. WS3478. Accordingly, the Agency finds that WestJet properly applied Rule 65(A) of its Tariff when it did not permit the applicants to board Flight No. WS3478, as required by subsection 110(4) of the ATR.

[42] As for the new flight on which the applicants were reprotected, Flight No. WS374, the applicants never showed up at the gate for that flight. Rule 30(A)(5)(b) of WestJet’s Tariff states that if a passenger arrives at the gate less than 10 minutes before departure and the aircraft is already boarded, he/she will be refused transport. Given that the applicants did not go to the gate for Flight No. WS374 and missed the flight on which they were reprotected, WestJet offloaded them from that flight. Based on the above, the Agency finds that WestJet properly applied the terms and conditions set out in Rule 30(A)(5)(b) of its Tariff, as required by subsection 110(4) of the ATR.

[43] The Agency notes that, as a gesture of goodwill, WestJet provided the applicants with hotel accommodation and meal vouchers for the evening and reprotected the applicants on the first flight out the following morning from Toronto to Ottawa. However, the applicants’ baggage was already transferred by WestJet and therefore the applicants did not have their baggage available to them for the night that they had to spend in the hotel. Notwithstanding the above, the Agency notes that the applicants did not incur any expenses as a result of the delay.

CONCLUSION

[44] The Agency finds that Philippine Airlines properly applied the terms and conditions set out in Rule 85(B)(2) of its Tariff when it reprotected the applicants on a later WestJet flight to Ottawa, as required by subsection 110(4) of the ATR.

[45] The Agency also finds that WestJet properly applied the terms and conditions set out in Rules 30(A)(5)(b) and 65(A) of its Tariff when it did not permit the applicants to board Flight No. WS3478 and when it offloaded them from Flight No. WS374, as required by subsection 110(4) of the ATR.

[46] Therefore, the Agency dismisses the application.

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APPENDIX TO DECISION NO. 10-C-A-2021

International Passenger Rules and Fares Tariff No. PR-1 Containing Local and Joint Rules, Fares, and Charges on Behalf of Philippine Air Lines, Inc. Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 3, NTA(A) No. 358 (Philippine Airlines’ Tariff)

Rule 55(G) of Philippine Airlines’ Tariff addresses the liability of the carrier and incorporates the Montreal Convention by stating the following:

For purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.

Rule 85(A) and (B) of Philippine Airlines’ Tariff addresses schedules, delays and cancellations, and states the following:

(A) SCHEDULES

(1) Carrier undertakes to use its best efforts to carry the Passenger and his or her Baggage with reasonable dispatch and to adhere to published schedules, in effect on the date of travel. However, no particular time is fixed for the commencement or completion of carriage and times shown in ticket, time tables or elsewhere are approximate and not guaranteed, and do not form part of the Contract of Carriage. Schedules are subject to change without notice, and Carrier assumes no responsibility for making connections.

(2) Carrier may, without notice, substitute alternative carriers or aircraft.

(B) CANCELLATION, CHANGES OF SCHEDULE

If due to circumstances beyond its control Carrier cancels or delays a flight, is unable to provide previously confirmed space, fails to stop at a Passenger’s stopover or destination point, or causes the Passenger to miss a connecting flight on which the Passenger holds a confirmed reservation, Carrier shall not be liable for any indirect, special or consequential loss, expense or damage. However, it may either:

(1) Carry the Passenger on another of its scheduled Passenger services on which space is available, or

(2) reroute the Passenger to the destination indicated on the Ticket or applicable portion thereof by its own scheduled services or the scheduled services of another carrier, or by means of surface transportation.…

….

International/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518 (WestJet’s Tariff)

Rule 30(A)(5)(b) of WestJet’s Tariff addresses cut-off times and states the following:

(A) The Carrier will refuse to transport, or will remove any guest at any point for any of the following reasons:

….

(5) Failure to comply with carrier’s rules and regulations
When the guest fails or refuses to comply with rules and regulations of the carrier as stated in this tariff.

(a) Non-compliance with published cut off times – If a passenger arrives at the specified location less than the published cut off time from departure the passenger may be refused transport….

(b) cut off time

check-in counter 60 minutes

baggage counter 60 minutes

Gate 10 minutes

….

…. If a passenger arrives at the gate less than 10 minutes before departure and the aircraft is already boarded, [he]/she will be refused transport.…

Rule 65(A) of WestJet’s Tariff addresses tickets and states the following:

No person shall be entitled to transportation expect upon presentation of a valid confirmation number and acceptable photo identification.

Rule 75(B)(7) of WestJet’s Tariff addresses schedule irregularities and states the following:

The carrier whose flight experiences a schedule irregularity will make onward arrangements for the passenger to the next point of stopover shown on the ticket.