Decision No. 107-C-A-2022

[1] The applicants were scheduled to travel from Fort St. John, British Columbia, to Halifax, Nova Scotia, via Vancouver, British Columbia, and Ottawa, Ontario, on August 28, 2021, departing at 5:30 am and arriving in Halifax at 8:18 pm. However, on August 27, 2021, the respondent notified the applicants that it had cancelled the flight from Fort St. John to Vancouver operated by Jazz,^{Note 1}because of crew constraints resulting from the COVID-19 pandemic. The applicants were rebooked on a new itinerary departing 11 hours later at 4:30 pm and arriving in Halifax at 11:31 am, the following day. On the day of departure, the applicants’ flight from Vancouver to Ottawa flight was delayed by 1 hour and 18 minutes, and their Ottawa to Halifax flight was delayed by 51 minutes. The applicants arrived in Halifax 15 hours and 41 minutes later than originally scheduled.

[2] The applicants requested compensation for inconvenience under the Air Passenger Protection Regulations (APPR);^{Note 2}the respondent denied their claim on the basis that the flight was cancelled due to crew constraints resulting from the impact of the COVID-19 pandemic, which it considers a safety-related issue.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied its Tariff ^{Note 3}to the ticket that the applicants purchased. The relevant provisions of the CTA, the APPR and the Tariff are set out in the Appendix.

[4] The evidence shows that the applicants experienced three flight disruptions while travelling to Halifax.

[5] In Decision 122-C-A-2021 (APPR Interpretive Decision), the Agency stated that when a passenger is delayed by multiple flight disruptions, it is necessary to take into account all of the flights involved in the delay to the arrival of the passenger’s flight at the destination indicated on their original ticket, and to determine the primary reason, or most significant contributing factor, of the overall delay. Relevant factors for identifying the primary reason, or most significant contributing factor, include what caused the longest period of delay, whether a connection was missed, and whether the different disruptions are causally related.

[6] The Agency finds that the cancellation of the applicants’ flight from Fort St. John to Vancouver, which resulted in their missing the original connecting flights and which delayed their arrival in Halifax by 11 hours, was the primary reason, or most significant contributing factor, of their overall delay of 15 hours and 41 minutes.

[7] Under the Tariff and the APPR, compensation for inconvenience is owed only if this cancellation was within the respondent’s control.

[8] As the Agency stated in Decision 89-C-A-2022 (Lareau v WestJet), while the onus is on the applicant to establish, on a balance of probabilities, that the carrier failed to properly apply the rules applicable to their ticket, when a carrier claims that a disruption was within its control but required for safety purposes, or outside its control, it must establish this claim. As the relevant information is in the possession of the carrier, and as it is impossible for the passenger to have this information otherwise, the carrier has the responsibility to provide evidence to support its categorization of a disruption.

[9] In this case, the applicants claim that they are entitled to compensation on the basis that the cancellation was due to a staffing issue within the respondent’s control.

[10] The applicants’ request for compensation was initially denied by the respondent on the basis that the cancellation was within its control but required for safety. Before the Agency, however, the respondent takes the position that the cancellation was outside its control. It submits that the flight was cancelled because the first officer was unable to complete the refresher training required by the Canadian Aviation Regulations,^{Note 4} before the operation of the flight. The respondent further submits that several uncontrollable events interfered with its attempt to implement contingency plans, and provides supporting documentation. Specifically, it submits that its contingency plans were hindered by the impacts of the COVID-19 pandemic and the arrival of the Delta variant; the introduction of government measures and new labour law legislation; operational issues; and staffing issues with critical third-party stakeholders; as well as circumstances that led to bottleneck training issues.

[11] The vast majority of the evidence provided by the respondent consisted of documentation supporting its position that these various events affected the network as a whole during the summer of 2021. While the respondent did provide a reserve crew availability report that showed the unavailability of two reserve crew members at the Vancouver International Airport base at the time of the disruption, it did not otherwise address the specific circumstances of the cancellation of the applicants’ flight. It asserts that carriers cannot be expected to ascribe specific events to one specific disruption, nor provide information of specifically what happened to which flight.

[12] While the Agency acknowledges that the events described by the respondent are indicative of a difficult operating environment for carriers generally, they do not explain what happened in the specific circumstances that led to the flight disruption in this case, which must be assessed to determine the respondent’s obligations towards the applicants. Contrary to what is submitted by the respondent, to determine a carrier’s obligations under the APPR, the circumstances surrounding the specific flight or flights that are involved must be considered, including previous flights when a knock-on effect occurs. Carriers are, therefore, expected to provide evidence relating to the specific circumstances of a disruption in the context of an application before the Agency.

[13] Further, as stated in the APPR Interpretive Decision, even if situations outside the carrier’s control, or within the carrier’s control but required for safety purposes, contribute to a crew shortage, the crew shortage may still be found to be within the carrier’s control depending on whether the carrier has prepared and implemented reasonable contingency plans for replacing its crew. This assessment must be made on a case-by-case basis, and the carrier is expected to file evidence before the Agency with respect to its contingency plans.

[14] The Agency also recently found in Lareau v WestJet that the threshold for establishing that a crew shortage is not within the carrier’s control is high, given that air carriers generally have control over staffing issues, such as hiring, dispatching and training. The Agency indicated that carriers must demonstrate that they could not have reasonably prevented the disruption despite proper planning, and that they must provide evidence showing that the crew shortage was not the result of their own actions or inactions.

[15] Regulatory training requirements are foreseeable and periodic, and carriers must plan their operations accordingly. Proper planning is particularly important considering the operating environment described by the respondent. If a carrier schedules flights before securing a sufficient roster of crew who meet required qualifications, the Agency may find that a resulting disruption was due to the carrier’s own operational decision, and therefore, within its control.

[16] The Agency finds that, in this case, the respondent ought to have known prior to August 27, 2021, that the first officer scheduled to operate the applicants’ flight had not completed the required training. Despite the foregoing, the respondent’s arguments and evidence do not address what steps it took to replace the first officer before that date, nor why the cancellation occurred only the day before the flight’s scheduled departure. The respondent does not indicate whether alternatives to the cancellation were explored, nor whether there was a contingency plan in place to ensure that other first officers were available in the event of a crew shortage.

[17] In the absence of evidence establishing that the crew shortage was unavoidable despite proper planning, or demonstrating that the cancellation was not the result of the respondent’s actions or inactions, the Agency finds that the cancellation of the applicants’ flight from Fort St. John to Vancouver was within the respondent’s control.

[18] Pursuant to paragraph 12(3)(d) and subparagraph 19(1)(a)(iii) of the APPR and Rule 80(B)(2)(d) of the Tariff, the applicants are each entitled to compensation for inconvenience in the amount of CAD 1,000.

ORDER

[19] Pursuant to section 67.1 of the CTA, the Agency orders the respondent to compensate each of the applicants CAD 1,000, as soon as possible and no later than October 11, 2022.

 

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APPENDIX TO DECISION 107-C-A-2022

Canada Transportation Act, SC 1996, c 10

67.1 If, on complaint in writing to the Agency by any person, the Agency finds that, contrary to subsection 67(3), the holder of a domestic licence has applied a fare, rate, charge or term or condition of carriage applicable to the domestic service it offers that is not set out in its tariffs, the Agency may order the licensee to

(a) apply a fare, rate, charge or term or condition of carriage that is set out in its tariffs;

(b) compensate any person adversely affected for any expenses they incurred as a result of the licensee’s failure to apply a fare, rate,
     charge or term or condition of carriage that was set out in its tariffs; and

(c) take any other appropriate corrective measures.

Air Passenger Protection Regulations, SOR/2019-150

Obligations when within carrier’s control

…

Cancellation

12(3) In the case of a cancellation, the carrier must

…

(d) if a passenger is informed 14 days or less before the original departure time that the arrival of their flight at the destination that is
     indicated on their ticket will be delayed, provide the minimum compensation for inconvenience in the manner set out in section 19.

…

Compensation for delay or cancellation

19(1) If paragraph 12(2)(d) or (3)(d) applies to a carrier, it must provide the following minimum compensation:

(a) in the case of a large carrier,

…

(iii) $1,000, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by nine hours or more;
      and…

Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA(A) 3.

RULE 80 – SCHEDULE IRREGULARITIES

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B.  Schedule Irregularities

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(2) In the event of a Schedule Irregularity that is within Air Canada's control:

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d) Compensation

If, due to a delay or cancellation within Air Canada’s control, passenger arrives with a delay at arrival of three hours or more, Air Canada will provide compensation in accordance with APPR. Only the operating carrier will provide compensation;

…

Endnotes