Decision No. 102-C-A-2020
APPLICATION by Ali Madooei against Air Canada, pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding a flight cancellation.
SUMMARY
[1] Ali Madooei filed an application with the Canadian Transportation Agency (Agency) against Air Canada regarding the cancellation of Flight No. AC7506 from Toronto, Ontario, to Baltimore, USA, on January 31, 2019.
[2] Mr. Madooei purchased a standard economy fare ticket in the amount of CAD 995.01 to travel round-trip from Vancouver, British Columbia, to Baltimore, via Toronto.
[3] Air Canada refunded Mr. Madooei in the amount of CAD 531.87 for the flight segments he did not use between Toronto and Baltimore.
[4] Mr. Madooei seeks a refund in the amount of CAD 463.14 for the flight segments he travelled between Vancouver and Toronto.
[5] The Agency will address the following issues:
- Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC‑ 2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the ATR?
- If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy if any, should be ordered?
[6] For the reasons set out below, the Agency finds that Air Canada did not properly apply the terms and conditions set out in its Tariff. Accordingly, the Agency orders Air Canada to provide Mr. Madooei with a credit in the amount of CAD 463.14. The credit is to be issued as soon as possible, but no later than January 4, 2021.
BACKGROUND
[7] On January 31, 2019, Mr. Madooei checked in at the Vancouver International Airport (Vancouver Airport) for Flight No. AC112, which was departing at 11:30 a.m. Pacific Standard Time (PST) to Toronto. Upon check-in for Flight No. AC112, Mr. Madooei also received a boarding pass for his Toronto to Baltimore flight, Flight No. AC7506.
[8] Flight No. AC7506 was cancelled due to severe weather and Mr. Madooei was reprotected on another flight to travel from Toronto to Baltimore the following afternoon, February 1, 2019. This was unsatisfactory to Mr. Madooei because he had to be in Baltimore the morning of February 1, 2019, for an interview. Mr. Madooei spoke to an Air Canada agent and requested to be put on an earlier flight, but he was allegedly advised that all flights were cancelled, including the flight on which he had been reprotected. Since the cancellation of Flight No. AC7506 resulted in his travel no longer serving any purpose, Mr. Madooei decided to return to Vancouver.
THE LAW AND RELEVANT TARIFF PROVISIONS
[9] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
[10] 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 air 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.
[11] The relevant provisions of Air Canada’s Tariff are set out in the Appendix.
POSITIONS OF THE PARTIES
Mr. Madooei
[12] Mr. Madooei states that when he arrived at the Vancouver Airport at approximately 10:00 a.m. PST, he tried to print his boarding passes from the self-service kiosk but was unable to do so for Flight No. AC7506. Mr. Madooei was directed to a check-in agent who printed boarding passes for Flight Nos. AC112 and AC7506.
[13] Mr. Madooei submits that upon landing in Toronto, he noticed an e-mail notification from Air Canada that was sent at 4:34 p.m. PST informing him that Flight No. AC7506 was cancelled and that he was reprotected on an Air Canada flight departing the afternoon of February 1, 2019. Mr. Madooei claims that he spoke to another passenger about the cancellation and was told that Air Canada cancelled Flight No. AC7506 at 8:46 a.m. PST, which was prior to his departure from Vancouver.
[14] Mr. Madooei states that the flight Air Canada had reprotected him on was unsatisfactory as his interview was taking place in the morning of February 1, 2019, and the rebooked flight arrived late in the afternoon. Mr. Madooei submits that he spoke with an Air Canada agent to see if he could travel on a morning flight that he saw was available online. He claims that the agent “confided” in him that even though the morning flight showed available, it was cancelled as was the flight on which he was reprotected. Mr. Madooei states that, as he was going to miss his interview, there was no reason to continue on to Baltimore, so he decided to return to Vancouver. Mr. Madooei indicates that Air Canada rebooked him to return to Vancouver on a flight departing later that same evening, January 31, 2019.
[15] According to Mr. Madooei, the check-in agent at the Vancouver Airport never advised him of the cancellation of Flight No. AC7506. He claims that upon check-in, he should have been advised of the cancellation of his connecting flight and offered alternative options to travel to Baltimore. Mr. Madooei submits that if he had known prior to his departure from Vancouver that he would not be able to travel to Baltimore in time for his interview, he would have cancelled his trip.
Air Canada
[16] Air Canada argues that Mr. Madooei was notified of the cancellation of Flight No. AC7506 at 8:46 a.m. PST, but travelled regardless. Air Canada states that the reason Flight No. AC7506 did not appear cancelled when Mr. Madooei checked in at the Vancouver Airport is because of an “operational constraint” with its reservation system at the time.
[17] Air Canada maintains that once Mr. Madooei arrived in Toronto, it offered to rebook him on its next available flight to Baltimore, departing February 1, 2019, at 2:55 p.m. Eastern Standard Time (EST). However, Air Canada submits that Mr. Madooei was not satisfied with this option so he chose to return to Vancouver.
[18] Air Canada argues that because the delay was outside of its control, it had no obligation under its Tariff to return Mr. Madooei to Vancouver on January 31, 2019, as he was ticketed to return on February 2, 2019, but, as a good will gesture, it accommodated Mr. Madooei’s request.
[19] Air Canada states that, as required by its Tariff, Mr. Madooei received a refund in the amount of CAD 531.87 for the unused portions of his ticket. Air Canada argues that while Mr. Madooei claims that he would not have travelled if he had known that Flight No. AC7506 was cancelled, it “cannot be held responsible for a passenger’s reason for travel or make decisions based on their post-travel schedules.”
ANALYSIS AND DETERMINATIONS
Issue 1: Did Air Canada properly apply the terms and conditions set out in its Tariff as required by subsection 110(4) of the ATR?
[20] The onus is on the applicant to establish, on a balance of probabilities, that the carrier failed to properly apply the terms and conditions of carriage set out in its tariff.
NOTIFICATION OF FLIGHT CANCELLATION
[21] Rule 80(C)(3) of the Tariff states that Air Canada will make reasonable efforts to inform passengers of delays, cancellations and schedule changes, and, to the extent possible, the reason for the delay or change.
[22] In this case, the parties have filed contradictory versions of when Mr. Madooei was notified of the cancellation of Flight No. AC7506. When contradictory versions of events are presented by parties, the Agency, must determine which of the different versions is more probable, based on the preponderance of evidence (as set out in Decision No. 348‑C‑A‑2008 [Bernier v Air Transat]).
[23] Air Canada claims that it notified Mr. Madooei at 8:46 a.m. PST, but he decided to travel to Toronto regardless. In support of its claim, Air Canada filed a passenger notification list (list) which indicates that it was created at 16:45:42 Zulu Time (8:46 a.m. PST) and that notification of the cancellation was sent to Mr. Madooei in the form of an e-mail. The Agency notes that the list only indicates when it was created, it does not indicate the time at which the e-mail was sent to Mr. Madooei. Furthermore, Air Canada acknowledges that due to an “operational constraint” with its reservation system, Mr. Madooei was not advised of the cancellation of Flight No. AC7506 when he checked in at the Vancouver Airport. In fact, Mr. Madooei was issued a boarding pass for Flight No. AC7506.
[24] Mr. Madooei claims that he was only notified of the cancellation of Flight No. AC7506 at 4:36 p.m. PST, prior to his landing in Toronto but after he departed Vancouver. In support of his claim, Mr. Madooei filed a copy of the e-mail he received from Air Canada. The e-mail has a date/time stamp indicating it was sent January 31, 2019, at 7:09 p.m. The e-mail does not indicate the time zone; however, the Agency finds that the evidence is sufficient to establish that the e-mail was sent to Mr. Madooei after 8:46 a.m. PST as alleged by Air Canada and after he had departed from Vancouver. Therefore, the Agency finds, on a balance of probabilities, that Mr. Madooei was notified of the cancellation of Flight No. AC 7506 after his departure from Vancouver.
[25] Based on the above, the Agency finds that Air Canada issued a boarding pass to Mr. Madooei after it had cancelled Flight No. AC7506, but only notified Mr. Madooei of the cancellation hours after it occurred and while he was en route to Toronto. Therefore, the Agency finds that Air Canada did not make reasonable efforts to notify Mr. Madooei of the cancellation of Flight No. AC7506. Accordingly, the Agency finds that Air Canada did not properly apply the terms and conditions set out in the Tariff, thus contravening subsection 110(4) of the ATR.
Issue 2: If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedies, if any, should be ordered?
[26] Section 113.1 of the ATR contemplates certain remedial actions if a carrier has failed to apply the terms and conditions set out in its tariff.
[27] Mr. Madooei seeks a refund in the amount of CAD 463.14 for the round-trip flight segments he travelled between Vancouver and Toronto.
[28] To determine if Mr. Madooei is entitled to the refund requested, the Agency must consider the terms and conditions of the Tariff and the fare rule associated to Mr. Madooei’s ticket.
[29] Rule 100(A)(1) of the Tariff at the time of ticketing addresses refunds and provides that for non-refundable tickets, with the exception of economy basic fares, the unused value may be used towards the purchase of another ticket subject to any fee or penalty contained in the applicable fare rules and subject to the customer cancelling the booking prior to departure.
[30] The fare rule associated with Mr. Madooei’s ticket indicates that he purchased an economy standard fare that was non-refundable. However, if the flight segments are cancelled before departure, the value of the ticket can be used towards future travel, within one year of the original ticket issuance date. The fare rule also indicates that the ticket is subject to a change fee if changes are made to the itinerary, but does not set out that the ticket is subject to a cancellation fee, if cancelled.
[31] In light of the foregoing, the Agency finds that Mr. Madooei would have been entitled to a credit equal to the value of his ticket, in accordance with Rule 100 of the Tariff and the applicable fare rule, if he had cancelled his reservation prior to departing Vancouver on January 31, 2019.
[32] Based on the foregoing, the Agency accepts Mr. Madooei’s evidence as reasonable in the circumstances and finds that he would have cancelled his entire reservation had Air Canada notified him of the cancellation of Flight No. AC7506 prior to his departure from Vancouver as the trip to Toronto served no purpose if he couldn’t travel on to Baltimore in a timely way. Therefore, Mr. Madooei is entitled to a credit equal to the value of his ticket, as if no portion of his ticket was used. However, given that Air Canada has already provided Mr. Madooei with a refund in the amount of CAD 531.87, he is therefore entitled to a credit in the amount of CAD 463.14, which is the value of his ticket less the amount of refund he has already received.
CONCLUSION
[33] The Agency finds that Air Canada did not properly apply the terms and conditions set out in Rule 80(C)(3) of its Tariff when it did not make reasonable efforts to notify Mr. Madooei of the cancellation of Flight No. AC506, thus contravening subsection 110(4) of the ATR.
[34] Furthermore, the Agency finds that, if Air Canada had properly applied its Tariff such that Mr. Madooei was notified of the cancellation prior to boarding Flight No. AC112, Mr. Madooei would have cancelled his reservation, and therefore would have been entitled to a future travel credit in the amount of the value of his ticket. Given that he has already received a refund in the amount of CAD 531.87, Mr. Madooei is entitled to a travel credit in the amount of CAD 463.14.
ORDER
[35] Pursuant to section 113.1 of the ATR, the Agency orders Air Canada to provide Mr. Madooei a travel credit in the amount of CAD 463.14. The credit is to be valid for two years from the date of issuance, or longer if it is Air Canada’s policy to do so given the COVID‑19 pandemic. The credit is to be issued as soon as possible, but no later than January 4, 2021.
APPENDIX TO DECISION NO. 102-C-A-2020
International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458
Rule 80 – SCHEDULE IRREGULARITIES
….
(C) SCHEDULE IRREGULARITY
(3) Given that passengers have a right to information on flight times and schedule changes, Air Canada will make reasonable efforts to inform passengers of delays, cancellations and schedule changes and to the extent possible, the reason for the delay or change.
Rule 100 – REFUNDS
(A) GENERAL
REFUND BY CARRIER: For unused ticket or portion thereof, or miscellaneous charges order, refund will be in accordance with this rule.
(1) Economy Basic fares are entirely non-refundable and hold no credit for future travel. For all other nonrefundable tickets, the unused value may be used towards the purchase of another ticket within a year from date of issue if ticket is fully unused or from first departure date for partially used ticket, subject to any fee or penalty contain in the applicable fare rules and subject to customer cancelling the booking prior to departure.
(E) GENERAL REFUNDS
- The term “General Refund” (sometimes referred to as “Voluntary Refund”) for the purposes of this paragraph, shall mean any refund of a ticket or portion thereof other than Carrier-Caused refund as defined above, which includes but not limited to circumstances that are not within the airline’s control, such as situations described in rule 70 (check-in and Boarding Time Limits), rule 75 (refusal to Transport), passenger chooses to no longer travel, and schedule irregularities outside carrier’s control.
2. Amount of general refund
The amount of general refunds will be as follows:
a) When ticket is fully unused, the amount of refund will be the fare, fees, charges, and surcharges paid less any applicable cancellation/change fee or penalty set out in the applicable fare rules.
b) When any ticket coupons have been used, the amount of the refund will be: the difference, if any, between the fare, taxes, fees, charges and surcharges paid and the fare, taxes, fees, charges and surcharges applicable for transportation used, less any applicable cancellation/change fee or penalty, as set out in the applicable fare rules. Note: the most restrictive cancellation/change fee applies.
Member(s)
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