Decision No. 108-C-A-2023

[1] The applicants were scheduled to travel from Tunis, Tunisia, to Montréal, Quebec, via Casablanca, Morocco, on December 18, 2020. Their flight was scheduled to depart at 11:50 am, but they were refused transportation because they arrived late at the departure gate.

[2] The applicants seek compensation in the amount of CAD 8,000 for pain and suffering caused by a night spent at the airport because of accommodation difficulties related to the pandemic. They also seek reimbursement of the additional cost of CAD 500 incurred to purchase replacement tickets.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied the terms and conditions applicable to the tickets that the applicants purchased, as set out in the respondent Tariff.

[4] If the Agency finds that the respondent failed to properly apply its Tariff, it can direct the respondent to take the corrective measures that it considers appropriate or to pay compensation for any expense incurred by a person adversely affected by its failure.

[5] The Agency does not have the power to order a carrier to pay compensation for pain and suffering in a case where the carrier did not properly apply the terms and conditions of its Tariff. Accordingly, the Agency will not consider this aspect of the application.

[6] With respect to the additional cost incurred by the applicants to purchase replacement tickets, a party, in endeavouring to prove a fact, must do so by presenting the best evidence available in light of the nature and circumstances of the case. In this case, although the applicants have asked to be reimbursed for the additional cost of CAD 500 incurred to purchase replacement tickets, they provided no evidence establishing that they paid this cost. Accordingly, the Agency dismisses this aspect of the application.

[7] The parties are presenting different versions of events. When contradictory versions of events are presented by parties, the Agency must determine which of the different versions is more probable, based on the evidence.

[8] The applicants submit that they checked their four pieces of baggage and went to the respondent’s counter to pay the checked baggage fees for their two additional pieces of baggage. The applicants claim that the respondent’s agents made them wait for 25 minutes because the printer was not working. The applicants add that, because of that delay, they arrived at the departure gate late, at 11:57 am.

[9] The applicants are of the opinion that the respondent’s employees intentionally delayed them when checking their additional baggage. They also claim that the respondent denied them boarding because the flight was overbooked.

[10] The respondent submits that the flight was operated with some empty seats and has filed evidence showing that there were seats available contrary to the applicants’ allegations. The respondent also submits that it refused to transport them because they arrived at the departure gate late.

[11] In their reply, the applicants dispute the accuracy of the information submitted by the respondent concerning the number of passengers who took the flight in question and the time their two pieces of additional baggage were checked.

[12] The Agency finds that the evidence filed by the respondent shows that Flight AT571 was not overbooked because it departed with empty seats. Furthermore, the Agency notes that both the respondent’s Tariff and the APPR limit denial of boarding to situations where there is an insufficient number of seats available on the flight. Accordingly, the Agency finds that this was not a denial of boarding pursuant to the APPR, but a refusal to transport.

[13] The evidence filed by the respondent shows that the applicants checked their additional baggage for December 18 at 10:10 am The respondent submits that the applicants had 1 hour and 25 minutes to get to the departure gate, and the boarding time limit was 11:35 am. The respondent adds that its employees noted the applicants’ absence when boarding was completed and therefore cancelled their reservation.

[14] The respondent indicates that the applicants arrived at the departure gate at 11:57 am, that is, 22 minutes after boarding was completed and 7 minutes after the scheduled flight time. This is not disputed by the applicants. The respondent submits that, at that time, the aircraft door was closed and takeoff was imminent, and that was why the respondent’s employees refused to transport the applicants.

[15] The Agency finds that, after checking their additional baggage, the applicants had enough time to arrive at the departure gate on time, but that they failed to do so. Accordingly, the Agency finds that the respondent refused to transport the applicants because of their late arrival at the departure gate, not because their flight was overbooked.

Conclusion

[16] In light of the above, the Agency dismisses the application.