Decision No. 104-C-A-2020

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent concerning the cancellation of Interjet Flight No. 2851 from Vancouver, British Columbia, to Mexico City, Mexico, on December 17, 2018.

[2] The applicants seek the following remedies:

• reimbursement of their hotel accommodation in the amount of CAD 303.45; and
• compensation in the amount of CAD 3,000 for the flight cancellation.

[3] The Agency will address the following issues:

• Did the respondent properly apply the terms and conditions set out in its International Scheduled Services Tariff General Rules Applicable to the Transportation of Passengers and Baggage Applicable to the Transportation of Passengers and Baggage Between Mexico and Canada, CTA(A) No. 1 (Tariff), with regard to flight delay as required by subsection 110(4) of the ATR?
• If the respondent did not properly apply the terms and conditions set out in its Tariff, what remedies, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that the respondent failed to properly apply the terms and conditions of carriage set out in its Tariff and orders the respondent to reimburse the applicants in the amount of CAD 303.45. The respondent is to pay this amount to the applicants as soon as possible and no later than January 4, 2021.

BACKGROUND

[5] The applicants were scheduled to depart on Flight No. 2851 from Vancouver to Mexico City on December 17, 2018, at 9:30 p.m. However, before boarding could begin, they were advised that the flight had been delayed. Then, at approximately 11:00 p.m., they were notified that the flight was cancelled.

[6] The applicants spent the night in a hotel. The applicants were notified the next morning at 5:00 a.m. that their new flight was scheduled to depart at 8:00 a.m. The applicants subsequently travelled to their destination on that flight.

[7] The respondent did not file an answer to the application.

PRELIMINARY MATTER

[8] The applicants seek compensation in the amount of CAD 3,000 for the cancelled flight. The Agency does not have the jurisdiction to order compensation for pain and suffering in respect of cases which involve alleged contraventions of carriers’ tariff-related obligations.

[9] Further, while the Agency has jurisdiction to order the payment of fixed amounts of compensation for inconvenience in situations described in section 12 of the Air Passenger Protection Regulations, SOR/2019-150 (APPR), the APPR was not in force at the time of the incident and does not apply retroactively.

[10] Therefore, the Agency will not consider this aspect of the application.

THE LAW AND RELEVANT TARIFF PROVISIONS

[11] 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.

[12] 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.

[13] Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention) establishes liability rules in relation to delay, baggage and cargo:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

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

POSITIONS OF THE APPLICANTS

[15] The applicants submit that they were advised at around 9:00 p.m. by the respondent’s staff that Flight No. 2851 was delayed and that, after 11:00 p.m., they were advised that the flight was cancelled because of mechanical problems.

[16] The applicants maintain that they were offered meal vouchers, but no hotel accommodation. The applicants claim that a member of the crew advised them that they should remain at the airport as the flight was going to depart between 4:00 and 5:00 a.m., and that they would not have enough time to go to and from a hotel.

[17] The applicants state that Carla Vallin did not want her two young children sleeping on the airport floor, so she paid for a night at a hotel.

ANALYSIS AND DETERMINATION

[18] 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.

[19] Rule 20.2.2(b) of the Tariff provides that damages occasioned by delay are subject to the terms, limitations and defenses set forth in the Warsaw Convention and the Montreal Convention. Canada and Mexico are both signatories to the Montreal Convention, therefore, the Montreal Convention applies to this case.

[20] The Agency notes that the cancellation of Flight No. 2851 resulted in the applicants being delayed in Vancouver for approximately 12 hours. Given that the applicants did not arrive in Mexico City as scheduled, the Agency finds that the applicants’ situation constitutes a “delay” and, therefore, falls within the scope of Article 19 of the Montreal Convention.

[21] Rule 20.2.2(a) of the Tariff provides that the carrier is liable for the damage occasioned by this delay, unless it can prove that it took all measures that could reasonably be required to avoid the damage. In this case, the applicants incurred an expense as a result of the flight delay.

[22] The respondent did not submit an answer to the application. Consequently, the Agency finds that the respondent did not meet its burden of proof to demonstrate that it took all reasonable measures to avoid the damage occasioned by the delay or that it was impossible for it to take such measures. Accordingly, the Agency finds that the respondent is liable for the damage incurred as a result of the delay experienced by the applicant.

[23] The applicants provided a receipt for their hotel accommodation in the amount of CAD 303.45. The Agency finds that the expense claimed by the applicants is reasonable as the delay resulted in the applicants requiring overnight accommodation.

[24] In light of the above, the Agency finds that applicants have proven, on a balance of probabilities, that the respondent did not properly apply the terms and conditions set out in Rule 20.2.2 of the Tariff with regard to carrier liability in the event of a flight delay, as required by subsection 110(4) of the ATR.

CONCLUSION

[25] The Agency finds that, by not providing hotel accommodation for the applicants, the respondent did not take all measures that could reasonably be required to avoid the damage occasioned by the delay as set out in Rule 20.2.2 and thereby contravening subsection 110(4) of the ATR.

ORDER

[26] Pursuant to section 113.1 of the ATR, the Agency orders the respondent to reimburse the applicants the amount of CAD 303.45. The respondent is to pay this amount to the applicants as soon as possible and no later than January 4, 2021.

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APPENDIX TO DECISION NO. 104-C-A-2020

International Scheduled Services Tariff General Rules Applicable to the Transportation of Passengers and Baggage Between Mexico and Canada, CTA(A) No. 1 (Tariff)

Rule 20 LIMITATIONS OF LIABILITY

Rule 20.2.2 Liability in the case of passenger delay

2. The Carrier shall be liable for damage occasioned by delay in the carriage of Passengers by air, as provided in the following paragraphs:

(a) The Carrier shall not be liable if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage, or that it was impossible for it or them to take such measures.

(b) Damages occasioned by delay are subject to the terms, limitations and defenses set forth in the Warsaw Convention and the Montreal Convention, whichever may apply, in addition to any limitation or defense recognized by a Court with proper jurisdiction over a claim.

(c)The Carrier reserves all defenses and limitations available under the Warsaw Convention or the Montreal Convention, whichever may apply to claims for damage occasioned by delay, including, but not limited to, the exoneration defense of Article 21 of the Warsaw Convention and Article 20 of the Montreal Convention. Under the Montreal Convention, the liability of the Carrier for damage caused by delay is limited to 4,694 SDR per passenger. The limits of liability shall not apply in cases described in Article 25 of the Warsaw Convention or Article 22(5) of the Montreal Convention, whichever may apply