Decision No. 108-C-A-2020

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent concerning baggage fees that were collected at the time of travel.

[2] The applicants seek reimbursement in the amount of EUR 120 for the checked baggage fees they had to pay upon departing Paris, France.

[3] The Agency will address the following issues:

• Did the respondent properly apply the terms and conditions of its Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the one Hand and Points Outside Canada (Except the United States) on the Other Hand, CTA(A) No. 4 (Tariff), with respect to the collection of fees, as required by subsection 110(4) of the ATR?
• Did the respondent properly apply the terms and conditions of its Tariff with respect to the amount it collected for the applicants’ pieces of checked baggage when departing Paris, as required by subsection 110(4) of the ATR?
• If the respondent did not properly apply the terms and conditions of its Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that the respondent properly applied the terms and conditions of carriage of its Tariff with respect to collecting a baggage fee from the applicants at the time of their departure. However, the Agency also finds that the respondent did not properly apply the terms and conditions of carriage of its Tariff with regard to how much it collected. Therefore, the Agency orders the respondent to compensate each of the applicants in the amount of CAD 19.92, for a total of CAD 39.84.

BACKGROUND

[5] On October 23, 2018, the applicants purchased round-trip tickets to travel between Vancouver, British Columbia, and Paris, departing on April 9, 2019, and returning on May 21, 2019. When the applicants checked in for their flights at both the Vancouver International and Paris-Charles de Gaulle airports, they were advised by the respondent’s agent that they had to pay for their checked baggage as the carrier had implemented a new baggage policy effective April 1, 2019, for tickets issued on or after October 2, 2018.

THE LAW AND RELEVANT TARIFF PROVISIONS

[6] 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.

[7] 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.

[8] Subsection 115(1) of the ATR requires that every tariff or amendment to a tariff be filed with the Agency at least 45 days before the tariff or amendment comes into force, except in certain circumstances.

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

DID THE RESPONDENT PROPERLY APPLY THE TERMS AND CONDITIONS OF ITS TARIFF WITH RESPECT TO THE COLLECTION OF FEES, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Position of the parties

THE APPLICANTS

[10] The applicants claim that they should not have had to pay for their checked baggage as the respondent’s new baggage policy came into effect after they purchased their tickets on October 23, 2018. The applicants argue that their tickets’ receipt did not indicate that they had to pay for checked baggage or that a fee could be collected at the time of departure. The applicants allege that such practice equates to “extortion” as they had no choice but to pay the fee.

[11] The applicants submit that they paid CAD 31.50 for one piece of checked baggage upon their departure from Vancouver and EUR 120 for two pieces of checked baggage (EUR 60 per piece) upon their departure from Paris. However, they state that the respondent reimbursed them the amount of CAD 31.50 that they paid upon departing Vancouver because their piece of checked baggage was delayed in arriving to Paris.

THE RESPONDENT

[12] The respondent argues that the applicants are not entitled to a refund of their baggage fees as its agents followed proper procedures for checked baggage. The respondent states that on October 1, 2018, its website was updated to inform passengers of its new baggage policy taking effect on April 1, 2019, for all bookings made as of October 2, 2018. It also maintains that notices were sent to all travel agencies informing them of the new policy. In support of its claims, the respondent filed copies of the notices and the information that appeared on its website.

[13] The respondent also argues that the applicants made their reservation on October 24, 2018, through Flight Centre, an online travel agency, after its new policy was announced.

[14] The respondent submits that Flight Centre’s terms and conditions, attached to the applicants’ tickets, caution passengers that not all air carriers have the same baggage allowance policies and, therefore, it is important to check the carrier’s baggage policy before departure.

[15] The respondent maintains that at no time did it take advantage of the applicants nor charge them an “extortion fee” as alleged.

Finding of fact

[16] In this case, the parties have filed contradicting information regarding when the applicants purchased their tickets. In support of their application, the applicants submitted a booking confirmation from Flight Centre that indicates that the tickets were purchased on October 23, 2018. Therefore, based on the evidence, the Agency finds that on October 23, 2018, the applicants purchased their round-trip tickets to travel from Vancouver to Paris.

Analysis and determination

[17] The onus is on the applicants 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.

[18] Rule 2(d) of the Tariff in effect at the time of ticketing provides that carriage is subject to the rules, fares and charges in effect on the date in which travel commences at the point of origin designated on the ticket.

[19] In this case, the evidence shows that the applicants’ travel commenced on April 9, 2019, days after the respondent’s new baggage policy came into effect.

[20] The Agency notes that the policy change was announced before the applicants purchased their tickets and that such information was publicly available on the respondent’s website and in its Tariff.

[21] In past Agency decisions, such as Decision No. 333-C-A-2006 (Burwash v Air Canada) and Decision No. 38-C-A-2014 (Brown v Air Canada), the Agency indicated that carriers should have the flexibility to price their fares and services as they see fit, subject to legislative or regulatory constraints.

[22] Subsection 115(1) of the ATR sets out that tariff changes must be filed with the Agency at least 45 days before they come into force. In this case, the Tariff on file with the Agency indicates that the respondent filed the change to its baggage policy on September 28, 2018, over six months in advance of the change taking place on April 1, 2019.

[23] In light of the above, the Agency finds that the respondent properly applied Rule 2(d) of its Tariff when it collected a fee for the applicants’ checked baggage.

DID THE RESPONDENT PROPERLY APPLY THE TERMS AND CONDITIONS OF ITS TARIFF WITH RESPECT TO THE AMOUNT IT COLLECTED FOR THE APPLICANTS’ PIECES OF CHECKED BAGGAGE WHEN DEPARTING PARIS, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?

Position of the parties

THE APPLICANTS

[24] The applicants state that they were each charged EUR 60 for their respective piece of checked baggage upon their departure from Paris. In support of their claim, they submitted two baggage receipts in the amount of EUR 60 each, for a total of EUR 120.

THE RESPONDENT

[25] The respondent submits that its agents followed proper procedures. In support of its position, it filed information from its website that indicates that the fee for one piece of baggage from Europe to Canada is EUR 60, plus any applicable taxes.

Analysis and determination

[26] The Agency notes that while the respondent seems to have applied an amount set out on its website, the carrier is obligated under subsection 110(4) of the ATR to apply the terms and conditions specified in its Tariff.

[27] Rule 7.1(d) of the Tariff at time of travel states that the fee for one piece of checked baggage, not prepaid, for travel on or after April 1, 2019, is CAD 70, plus any applicable taxes. It also provides that for departures outside of Canada, the fee will be charged in the currency of the departure city.

[28] The Bank of Canada’s historical exchange rate on May 21, 2019, the applicants’ departure date from Paris, was CAD 1 equals EUR 0.667. Using this rate, CAD 70 equals EUR 46.71.

[29] Based on the foregoing, the Agency finds that Air Transat failed to respect Rule 7.1(d) of its Tariff when it charged each of the applicants EUR 60 for their respective piece of checked baggage as the amount collected should have been EUR 46.71.

IF THE RESPONDENT DID NOT PROPERLY APPLY THE TERMS AND CONDITIONS OF ITS TARIFF, WHAT REMEDY, IF ANY, SHOULD BE ORDERED?

[30] The applicants seek reimbursement in an amount totalling EUR 120 for the checked baggage fees they paid upon departing Paris.

[31] The Agency finds that the applicants are not entitled to a full refund of their baggage fees as they travelled with two checked pieces of baggage and the respondent was correct in applying a fee for their checked baggage. However, they are entitled to the difference in the fee paid and the amount set out in the Tariff.

[32] The evidence indicates that the applicants each paid EUR 60 for their respective piece of checked baggage. The Tariff indicates that the fee should have been CAD 70, which converted into euros on their day of departure equals EUR 46.71. Therefore, the Agency finds that the difference between the fee paid and amount set out in the Tariff is EUR 13.29.

[33] The Bank of Canada’s historical exchange rate on May 21, 2019, the applicants’ departure date from Paris, was EUR 1 equals CAD 1.499. Using this rate, EUR 13.29 equals CAD 19.92.

[34] Based on the foregoing, the Agency finds that each of the applicants are entitled to CAD 19.92.

CONCLUSION

[35] The Agency finds that the respondent properly applied its Tariff when it collected a checked baggage fee from the applicants upon their departure from Paris. However, the Agency finds that the respondent did not properly apply its Tariff when it charged each of the applicants EUR 60 for their respective piece of checked baggage when they departed from Paris, thus contravening subsection 110(4) of the ATR.

ORDER

[36] Pursuant to section 113.1 of the ATR, the Agency orders the respondent to compensate each of the applicants the amount of CAD 19.92, which represents the overcharge collected for each of their piece of checked baggage from Paris. The respondent is to pay this amount to each of the applicants as soon as possible and no later than January 18, 2021.

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APPENDIX TO DECISION NO. 108-C-A-2020

Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the one Hand And Points Outside Canada (Except the United States) on the Other Hand, CTA(A) No. 4

RULE 2. APPLICATION OF TARIFF

….

(d) Carriage is subject to the rules, fares and charges in effect on the date on which such carriage commences at the point of origin designated on the tickets. References to pages, rules, items and notes are continuous and include revisions, supplements thereto and reissues thereof.

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RULE 7. CARRIAGE OF BAGGAGE AND CARGO (SUBJECT TO RULE 21)

7.1 Baggage

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d) For departure on or before March 30^th, 2019, the following applies

Number of free allowance baggage (maximum kg each)
Economy	South	Europe	Israel
ABC - ECO-ECO & ECO-PROMO	0 (23kg)	1 (23kg)	1 (30kg)
ABC - ECO-EXTRA & ECO-MAX	1 (23kg) Eco Extra 2 (23kg) Eco-Max	1 (23kg) Eco Extra 2 (23kg) Eco-Max	1 (30kg)
Package	1 (23kg)	1 (23kg)	1 (30kg)
Cruise (voucher of +5kg)	1 (23kg) +5kg	1 (23kg) +5kg
Option Plus	South	Europe	Israel
ABC - ECO-ECO & ECO-PROMO	1 (23kg)	2 (23kg) each	2 (30kg) each
ABC - ECO-EXTRA & ECO-MAX	2 (23kg) each	2 (23kg) each	2 (30kg) each
Package	2 (23kg) each	2 (23kg) each	2 (30kg) each
Cruise	2 (23kg) each	2 (23kg) each
Club	South	Europe	Israel
Club	2 (25kg) each	2 (32kg) each	2 (32kg) each
Exceptions
Haiti	1 (25kg) each
(Kg) is per piece

Baggage fee per segment (for departures on or before March 30th, 2019)
South and USA
Bag 1	Bag 2	Additional
25 $ CAD prepaid or 30 $ CAD if purchased at airport	40 $ CAD if prepaid or 50 $ CAD if purchased at airport	200 $ CAD
Europe and Israel
Bag 1	Bag 2	Additional
0 $ CAD	100 $ CAD	200 $ CAD

Prices and weights indicated are valid per flight segment. Applicable taxes are not included. In airports outside of Canada, prices will be charged in the currency of the departure city.

A piece of checked baggage shall not exceed 158 cm in total dimension (L x W x H) and 32 kilos in weight, otherwise baggage shall be shipped as cargo and cargo charges shall apply.

For Departures on or after April 1st, 2019, the following conditions apply:

Number of free allowance baggage (maximum kg each)
Economy	South	Europe	Israel
ABC - ECO Mini	No bag	No bag	No bag
ABC - ECO Standard	1 bag (23kg)	1 bag (23kg)	1 bag (30kg)
ABC - ECO Flex	2 bag (23kg) each	2 bag (23kg) each	2 bag (30kg) each
Package	1 bag (23kg)	1 bag (23kg)	1 bag (30kg)
Cruise (voucher of +5kg)	1 bag (23kg) +5kg	1 bag (23kg) +5kg	N/A
Option Plus	South	Europe	Israel
ABC - ECO Mini	1 bag (23kg)	1 bag (23kg)	1 bag (30kg)
ABC - ECO Standard	2 bag (23kg) each	2 bag (23kg) each	2 bag (30kg) each
ABC - ECO Flex	2 bag (23kg) each	2 bag (23kg) each	2 bag (30kg) each
Package	2 bag (23kg) each	2 bag (23kg) each	2 bag (30kg) each
Cruise	2 bag (23kg) each	2 bag (23kg) each	N/A
Club	South	Europe	Israel
Club	2 (25kg) each	2 (32kg) each	2 (32kg) each
Exceptions
Haiti	1 (25kg) each
(Kg) is per piece

Baggage fee per segment (for departures on or after April 1st, 2019)
South and USA
Bag 1	Bag 2		Additional
25 $ CAD prepaid or 30 $ CAD if purchased at airport	40 $ CAD if prepaid or 50 $ CAD if purchased at airport		200 $ CAD
Europe and Israel
Bag 1	Bag 2		Additional
55 $ CAD prepaid or 70 $ CAD if purchased at airport	100 $ CAD		200 $ CAD
Applicable taxes to add
Overweight/ Excess Baggage Fee
Piece (24kg to 32kg)		75 $ CAD
For Club class: Piece (26 kg to 32 kg), except Europe, where no heavy fee is charged up to 32 kgs		75 $ CAD

….