Decision No. 105-C-A-2022

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against Alitalia, claiming that Mr. Comlekcier did not receive the disability-related accommodations he requested on any of the flights on their round-trip itinerary between Toronto, Ontario, and Antalya, Turkey. They also raise claims specifically relating to their return travel.

[2] On September 6, 2019, Mr. Comlekcier purchased through a travel agent round-trip Economy tickets for himself, Ms. Huban and their minor child, departing on September 7, 2019, and returning on October 16, 2019. Mr. Comlekcier states that, when he booked the trip, he raised his disability-related needs with the travel agent and provided a copy of a doctor’s letter certifying that he has chronic osteoarthritis and requires extra leg room.

[3] The applicants’ tickets were issued by Alitalia as a codeshare itinerary, which means that the flights on their itinerary were marketed by Alitalia (using its code), but some of the flights were operated by Pegasus Airlines.

[4] The return portion of their itinerary included the following flights:

• Alitalia Flight 6081, from Antalya to Istanbul, operated by Pegasus Airlines;
• Alitalia Flight 7053, from Istanbul to Rome, operated by Pegasus Airlines; and
• Alitalia Flight 650, from Rome to Toronto.

[5] On October 16, 2019, when they checked in for Flight 6081 in Antalya, Pegasus Airlines applied its own baggage rules to the applicants. As a result, they were charged a total of EUR 620 in excess baggage fees for 62 kg of baggage.

[6] Flight 6081 was delayed and, anticipating a misconnection to Flight 7053, Pegasus Airlines rebooked the applicants on the following flights on October 18, 2019:

• Alitalia Flight 7047, from Istanbul to Rome, operated by Pegasus Airlines; and
• Alitalia Flight 650, from Rome to Toronto.

[7] Pegasus Airlines provided the applicants with hotel vouchers for two nights while they waited in Istanbul for the departure of Flight 7047. The applicants’ checked baggage was not available and they incurred expenses, estimated at CAD 200, for diapers, wipes, clothes and medicine. 

[8] During their travel on October 18, 2019, the applicants claim that Alitalia’s agents refused to assist Ms. Huban to reach the gate for their connecting flight in Rome with their 12-month-old baby and two pieces of carry-on baggage while Mr. Comlekcier attempted to retrieve their stroller at the baggage carousel outside of the passport-controlled area. In fact, the gate-checked stroller was not made available to the applicants while they were in transit in Rome, nor upon arrival in Toronto. It was delivered to their home five days later, unusable because of damage to the canopy and frame.

[9] The applicants seek an acknowledgement of fault from Alitalia and a refund of CAD 5,149.49 for their flights. They also seek compensation for the following claims:

• denial of boarding for Flight 7053;
• CAD 200 for out-of-pocket expenses incurred in Istanbul while awaiting the departure of Flight 7053;
• CAD 1,412.49 for the cost of their stroller, which was damaged beyond repair; and
• EUR 620 in excess baggage fees erroneously charged by Pegasus Airlines.

[10] Because some of these allegations relate to the actions carried out by Pegasus Airlines, the Agency added that carrier as a party to this proceeding.

PRELIMINARY MATTERS

[11] The Agency does not have authority under the CTA or the ATR over the quality of customer service or to order a carrier to issue an apology. Similarly, there is no basis upon which the Agency may order a refund for tickets when an applicant has completed their trip. Therefore, the Agency will not consider the applicants’ request for an acknowledgement of fault, their claim of poor customer service on Alitalia’s part towards Ms. Huban at the airport in Rome, or their request for a refund of their tickets.

[12] Although Alitalia filed an answer in response to the application, the Agency notes that the carrier has since gone out of business. Accordingly, with regret, the applicants’ claims that Alitalia failed to provide disability-related accommodation will not be considered because the Agency would be unable to order any meaningful corrective measures should it determine that Mr. Comlekcier is a person with a disability who encountered an undue barrier to his mobility.

[13] The Agency recognizes that Mr. Comlekcier had a difficult travel experience because the respondents did not accommodate his disability-related needs. Alitalia’s PNR for the applicants includes wheelchair assistance codes for Mr. Comlekcier for their original flights. It is unclear whether Alitalia communicated this information to Pegasus Airlines. Neither Alitalia nor Pegasus Airlines acknowledge any record of receiving his other requests for accommodation, which suggests that the travel agent may not have fully communicated these requests. Such coordination errors underscore the importance of confirming disability-related accommodation directly with the air carrier for each travel segment, preferably at least 48 hours before travel, as carriers cannot always adequately and safely fulfill accommodation requests made at check-in.

[14] Article 17(2) of the Montreal Convention,Note 1 which is incorporated in Alitalia’s TariffNote 2 at Rule 55(B)(1)(j), states that a carrier is liable for damage to checked baggage that occurred while the checked baggage was in its care. Although there is no evidence to indicate when the applicants’ stroller was damaged, Alitalia agreed with the applicants’ claim that it was liable for the damage and it offered to compensate them. The applicants did not accept that offer and, unfortunately, there is now no prospect of recovery from Alitalia.

[15] Lastly, the Agency recognizes that the applicants were inconvenienced because their gate-checked stroller was not available to them in Rome during their return trip nor upon their arrival in Toronto; however, it does not have authority to order compensation for pain and suffering in these circumstances. Therefore, the Agency will not consider this aspect of their application.

TARIFF

[16] In this decision, the role of the Agency is to decide whether Pegasus Airlines properly applied the terms and conditions contained in the tariff that was applicable to the tickets the applicants purchased. If the Agency finds that it failed to properly apply the applicable tariff, the Agency may direct the carrier to pay compensation for any expenses incurred by the applicants if they were adversely affected by the carrier’s failure.

[17] The return trip was a codeshare itinerary which included flights marketed by Alitalia and operated by Pegasus Airlines. Therefore, the Agency finds that Alitalia’s Tariff applies to all of the flights because Alitalia was the marketing carrier. The relevant provisions of the ATR, the Montreal Convention and Alitalia’s Tariff are set out in the Appendix.

MISCONNECTION

[18] Although the applicants claim that they were denied boarding on Flight 7053, they acknowledge that they never attempted to board the flight. The Agency finds that Pegasus Airlines proactively rebooked the applicants to flights on October 18, 2019, because it anticipated the misconnection, which is a common practice among air carriers to minimize customer inconvenience. The flight analysis provided by Alitalia shows that Flight 7053 departed with multiple empty seats. Consequently, the Agency finds that the applicants were not denied boarding, but rather experienced a misconnection.

[19] According to a flight monitoring notification provided by the applicants, the delay to Flight 6081 was to result in an estimated connection time in Istanbul of 23 minutes, well short of the 45-minute boarding deadline set out in Rule 60(F)(1) of Alitalia’s Tariff.

[20] The applicants claim that they could have travelled on Flight 7053, as it too was delayed. However, the evidence is that they had only two minutes to transit to the correct gate before the boarding deadline for the flight, given a later notification indicates that Flight 7053 was ultimately to depart at 12:32 p.m. and the applicants state that they reached the Istanbul terminal at 11:45 a.m.

[21] According to Rule 80(D) of Alitalia’s Tariff, Pegasus Airlines was required to make alternate travel arrangements for the applicants once they missed a connecting flight because of flight delay. Although the applicants were rebooked on flights departing two days later, Alitalia’s Tariff does not set out a timeframe for the replacement travel arrangements or whether and when the carrier must look to other carriers to fulfill the itinerary.

[22] Therefore, the Agency finds that Pegasus Airlines properly applied Rules 60(F)(1) and 80(D) of Alitalia’s Tariff when it cancelled the applicants’ reservations on Flight 7053 on October 16, 2019, and rebooked them on Flights 7047 and 650 departing on October 18, 2019.

DELAY

[23] Based on the METAR-TAF Report and Flight Control Center Records Extract provided by Pegasus Airlines, the Agency accepts that Flight 6081 was delayed due to severe weather conditions forcing the incoming aircraft to divert to another airport.

[24] Article 19 of the Montreal Convention, which is incorporated in Alitalia’s Tariff at Rule 55(B)(1)(j), states that carriers are liable for damage occasioned by flight delay unless they took all measures that could reasonably be required to avoid the damage or that it was impossible to take such measures. Pegasus Airlines did not provide any information about why it rebooked the applicants on flights departing two days later nor why it did not provide them with their baggage during the delay. The Agency finds that Pegasus Airlines has not demonstrated that it took all measures that were reasonably required to prevent the damage nor that it was impossible to take such measures. Furthermore, the Agency finds it reasonable that the applicants, a family of three with a baby, incurred expenses of approximately CAD 200 during the two-day delay without their baggage. Consequently, the Agency finds that the applicants are entitled to CAD 200 for the expenses that they incurred.

EXCESS BAGGAGE FEES

[25] Pegasus Airlines states that the applicants’ checked baggage had a total weight of 112 kg, which required the applicants to pay EUR 620 in fees for 62 kg of baggage over the entitlement provided under the Tariff of Pegasus Airlines. However, the application of its own tariff was in error as Pegasus Airlines should have applied the Tariff of Alitalia, the marketing carrier.

[26] The applicants’ evidence is that they travelled with five pieces of baggage, two per adult and one for the baby, which was within Alitalia’s baggage allowance and, thus, they were not charged any additional baggage fees by Alitalia for their flights from Toronto to Turkey.

[27] The Agency notes that Alitalia’s position was consistent with that of the applicants—the carrier agreed that their baggage was within their entitlements under Alitalia’s Tariff and that they should not have been charged any excess baggage fees by Pegasus Airlines.

[28] On this basis, the Agency finds that Pegasus Airlines, acting as Alitalia’s agent, erred when it charged the applicants EUR 620 in excess baggage fees to check their baggage.

EXCHANGE RATE

[29] On October 16, 2019, the exchange rate in effect at the Bank of Canada to convert a Euro into Canadian dollars was 1.4603. Using that rate, the excess amount of EUR 620 charged by Pegasus Airlines equates to approximately CAD 905.37.

ORDER

[30] Therefore, the Agency orders Pegasus Airlines to compensate the applicants in the amount of CAD 1,105.37, representing the CAD 905.37 in excess baggage fees improperly charged in Antalya and the CAD 200 for expenses incurred when the applicants did not have their baggage during the layover in Istanbul. This amount should be paid as soon as possible and no later than October 7, 2022.
 

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APPENDIX TO DECISION 105-C-A-2022

Air Transportation Regulations, SOR/88-58

110(4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

113.1(1) If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may, if it receives a written complaint, 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 that are applicable to the service it offers and that were set out in the tariff.

Convention for the Unification of Certain Rules for International Carriage by Air – Montreal

Article 17 — Death and Injury of Passengers — Damage to Baggage

…

2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents.

…

Article 19 — Delay

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.

International Passenger Rules and Fares Tariff No. IPR-2 Containing Local and Joint Rules, Regulations, Fares & Charges Applicable to the Transportation of Passengers and Baggage between/via Points in the United States/Canada and Points Throughout the World, NTA(A) No. 210

Rule 55 - Liability of carriers

…

(B) Laws and provisions applicable

…

(1)(j) (Applicable to AZ/NZ/OS/QF/SK/SN only) For the 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 60 – Reservations

(F) Check-in time limits

(1) (Not applicable to OS) Passengers must present themselves at the departure gate for boarding at least 45 minutes prior to scheduled departure time or their reservations and seat assignments are subject to cancellation. Advance reserved seats are subject to cancellation 45 minutes prior to scheduled departure time whether or not advance boarding passed have been issued.

…

Rule 80 – Revised routings, failure to carry and missed connection

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(D) Missed connections                       

In the event a passenger misses an onward connecting flight on which space has been reserved because of the delivering carrier did not operate its flight according to schedule or changed the schedule of such flight, the delivering carrier will arrange for the carriage of the passenger or make involuntary refund in accordance with Rule 90.

…