Decision No. 111-AT-C-A-2020
APPLICATION by Yousuf Omer against Air Canada, pursuant to subsection 172(1) of the Canada Transportation Act, SC 1996, c 10 (CTA), regarding his disability-related needs; and subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding the liability of carriers with respect to schedule irregularities and check-in requirements.
SUMMARY
[1] Yousuf Omer filed an application with the Canadian Transportation Agency (Agency) against Air Canada, pursuant to subsection 172(1) of the CTA, with respect to Air Canada’s alleged failure to provide him assistance during a connection; and pursuant to subsection 110(4) of the ATR, with respect to a delayed flight and a missed flight.
[2] The Agency will address the following issues:
- Is Mr. Omer a person with a disability?
- Did Mr. Omer encounter an obstacle to his mobility?
- Did Air Canada properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458 (Tariff), relating to schedule irregularities and check-in requirements, as required by subsection 110(4) of the ATR?
- If Air Canada did not properly apply the terms and conditions set out in its Tariff, what remedy, if any, should be ordered?
[3] For the reasons set out below, the Agency finds that:
- Mr. Omer is a person with a disability.
- Mr. Omer did not encounter an obstacle to his mobility that is attributable to Air Canada when he did not receive the assistance that he requested to get to his connecting flight in time.
- Air Canada properly applied the terms and conditions set out in Rule 80 of its Tariff for the inbound flight.
- Air Canada did not properly apply the terms and conditions set out in Rules 70 and 100 of its Tariff for the outbound flight.
[4] Therefore, pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate Mr. Omer in the amount of CAD 315.40. Air Canada is to pay this amount to Mr. Omer as soon as possible and no later than February 4, 2021.
BACKGROUND
[5] On January 10, 2019, Mr. Omer travelled from Toronto, Ontario, to Kuwait City, Kuwait, via London, United Kingdom. The flight to London was delayed by 18 minutes and as a result, Mr. Omer missed his connecting flight to Kuwait City. Mr. Omer was reprotected by Air Canada on another flight and he arrived in Kuwait City 24 hours later than originally scheduled.
[6] Mr. Omer was scheduled to return to Toronto, based on his original itinerary, on January 22, 2019, but while in Kuwait City, he purchased a one-way ticket with EgyptAir to return to Toronto on January 16, 2019.
[7] Mr. Omer seeks reimbursement in the amount of CAD 400 for his hotel accommodation while he was in Kuwait City and CAD 1,055 for his return ticket to Toronto with EgyptAir.
THE LAW AND RELEVANT TARIFF PROVISIONS
[8] Mr. Omer raises issues related to both accessibility and the application of Air Canada’s Tariff.
Accessibility
[9] The Agency notes that subsection 172(1) of the CTA that was in effect at the time the incident that is the subject of this application occurred, read as follows:
The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
[10] The Agency determines whether there is an undue obstacle to the mobility of a person with a disability using a two-part approach:
Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:
- they have a disability, for the purposes of Part V of the CTA;
and
- they faced an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.
Part 2: If it is determined that the applicant has a disability and faced an obstacle, the onus shifts to the respondent to either:
- explain, taking into account any proposals from the applicant, how it proposes to remove the obstacle through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting an obstacle, or, if a general modification is not feasible, an individual accommodation measure;
or
- demonstrate, on a balance of probabilities, that it cannot remove the obstacle without experiencing undue hardship.
[11] The Agency will address the first part of the above two-part approach in this Decision.
Tariff
[12] Subsection 110(4) of the ATR requires that an air carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
[13] 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 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.
[14] The relevant provisions of Air Canada’s Tariff are set out in the Appendix.
ISSUE 1: IS MR. OMER A PERSON WITH A DISABILITY?
[15] Mr. Omer is blind. The Agency therefore finds that he is a person with a disability.
ISSUE 2: DID MR. OMER ENCOUNTER AN OBSTACLE TO HIS MOBILITY?
Positions of the parties
MR. OMER
[16] According to Mr. Omer, he booked his original ticket to Kuwait City through Flight Network, a travel agency. His original Flight Network itinerary contains the following notation under Passenger Information: “Spec Requirement: Person with a visual impairment or who is blind.”
[17] Mr. Omer states that his flight to London arrived late and that he waited for assistance in order to reach the boarding gate for his connecting flight. He states that he missed his connecting flight to Kuwait City and had to stay overnight in London to wait for the next flight.
AIR CANADA
[18] Air Canada states that the flight that Mr. Omer took from Toronto to London departed 2 minutes before its scheduled departure time, but arrived 18 minutes late due to weather issues en route.
[19] Air Canada claims that, although Mr. Omer’s booking confirmation from the travel agency included a note that assistance was needed, this information was not properly transmitted to Air Canada by means of a Special Service Request (SSR). If it had been communicated in advance of travel, Air Canada indicates that this information would have appeared in Mr. Omer’s Historical Passenger Name Record (HPNR). Therefore, Air Canada claims that it was unaware of Mr. Omer’s need for assistance before the date of travel.
[20] When Mr. Omer arrived at the Toronto Pearson International Airport and repeated his request for assistance, Air Canada claims that the agent correctly entered this information in order to request that the Heathrow Airport Authority provide him with the assistance that he required. Air Canada states that this is confirmed by the presence of the SSR code “BLND” on Mr. Omer’s departure control system record and boarding pass.
[21] Air Canada claims that the Heathrow Airport Authority confirmed that it had received the request for assistance. Air Canada submitted an investigation report from the Heathrow Airport Authority, which indicates that an agent was sent to assist Mr. Omer at the arrival of his flight, but the Heathrow Airport Authority was unable to confirm the time that the agent was sent or if the assistance was provided.
[22] Air Canada claims that according to Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air [Regulation (EC) No 1107/2006], it is the responsibility of the airport to ensure that disability-related assistance is offered. Air Canada states that the Heathrow Airport Authority has contracted a third-party service provider to carry out its assistive obligations under Regulation (EC) No 1107/2006. Air Canada indicates that it operates in Terminal 2, where the third-party service provider is Omniserv.
[23] Air Canada argues that it fulfilled its obligation to convey the request for assistance to the Heathrow Airport Authority and that it therefore cannot be held responsible for any failure to provide the requested assistance.
Analysis and determinations
[24] Transportation service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they were not provided with an accommodation that meets their disability-related needs, thereby being denied equal access to services that are available to others in the federal transportation network.
[25] The onus is on the applicant to establish, on a balance of probabilities, that he faced a disability-related obstacle.
[26] It is undisputed that Mr. Omer requested assistance to get to his connecting flight at the Heathrow Airport. The evidence shows that Air Canada requested that the Heathrow Airport Authority provide the assistance that Mr. Omer required, but the Heathrow Airport Authority cannot confirm when, or whether, the assistance was provided. It is undisputed that Mr. Omer missed his connecting flight. On this basis, the Agency finds, on a balance or probabilities, that he did not receive the assistance that he requested in order to board his connecting flight in time.
[27] The Agency does not have jurisdiction over the services that are offered by a foreign airport authority, such as the Heathrow Airport Authority, or by a foreign company contracted to provide services on the airport authority’s behalf, such as Omniserv. In this case, the Agency’s jurisdiction is limited to whether Air Canada communicated Mr. Omer’s accessibility-related information to the Heathrow Airport Authority. The Heathrow Airport Authority’s investigation report filed by Air Canada indicates that the Heathrow Airport Authority was notified of the request nine hours in advance. Therefore, the Agency finds that Mr. Omer did not encounter an obstacle to his mobility that is attributable to Air Canada when he did not receive the assistance that he requested to get to his connecting flight in time.
[28] The Agency also notes that Mr. Omer’s original Flight Network itinerary, while apparently meeting the minimum connection times that are required by the computer reservation system for connecting flights from Heathrow Airport, did not make any allowance for typical delays due to winter weather, or the time that would be required after his arrival to obtain the assistance that he required to get to his connecting flight. The Heathrow Airport Authority’s investigation report indicated that, due to the late arrival of only 18 minutes of Mr. Omer’s flight, the remaining connection time of 76 minutes was not sufficient for either an assisted or non-assisted person to make the departure of the flight to Kuwait City. It would appear that Flight Network did not ascribe any weight to these possibilities when constructing Mr. Omer’s itinerary, particularly in light of its knowledge that Mr. Omer would require assistance upon his arrival. Given the unfortunate events that he experienced during his trip, the Agency encourages Mr. Omer to plan for sufficient time between his connecting flights for his travels in the future.
ISSUE 3: DID AIR CANADA PROPERLY APPLY THE TERMS AND CONDITIONS SET OUT IN ITS TARIFF, RELATING TO SCHEDULE IRREGULARITIES AND CHECK-IN REQUIREMENTS, AS REQUIRED BY SUBSECTION 110(4) OF THE ATR?
Positions of the parties
MR. OMER
[29] Mr. Omer claims that the purpose of his trip to Kuwait City was to speak at a conference, and that he missed the conference because he was delayed by 24 hours after he missed his connecting flight. He claims that all of his hotel arrangements in Kuwait City were cancelled as well as all the activities that he had planned at the conference. Mr. Omer states that “he tried to reschedule a return flight,” but that “he had to cancel his flight and pay cancellation fees.” He also states that he booked a flight home with EgyptAir and that he had to pay for hotel accommodation in the meantime.
[30] Mr. Omer indicates that he returned to Toronto from Kuwait City on January 17, 2019.
AIR CANADA
[31] Air Canada claims that the flight to London was delayed by 18 minutes while en route due to weather issues. It argues that the delay was wholly outside of its control.
[32] Air Canada claims that Mr. Omer chose not to use or exchange the remaining coupons of his original e-ticket and instead booked a return one-way ticket with EgyptAir. It argues that he could have given Air Canada an opportunity to rebook him on a flight home from London or after arriving in Kuwait City using the remaining value of his ticket.
[33] Air Canada submits that Mr. Omer was considered a “No-Show” on his return itinerary and that, according to the applicable fare rules, if the base fare value of Mr. Omer’s return ticket is less than the amount of the cancellation fee, the only refund owed to him is the applicable taxes. Air Canada claims that it has confirmed that Mr. Omer’s remaining base fare is less than the cancellation fee of CAD 300. It states that he is entitled to a refund of the applicable taxes, for a total amount of CAD 315.40.
[34] Air Canada argues that Mr. Omer has not provided any receipts for the expenses that he claims, which are his return ticket with EgyptAir and his hotel accommodation. Finally, Air Canada argues that it followed its obligations under its Tariff and should not be held liable for the cost of Mr. Omer’s return ticket or his hotel expenses.
Analysis and determinations
[35] 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 as set out in its tariff.
[36] Rule 80(A)(1) of Air Canada’s Tariff provides that the schedules are not guaranteed. Flight No. AC868 from Toronto to London arrived 18 minutes late due to weather issues outside of Air Canada’s control. The delay falls within the scope of Rule 80(C)(1)(a), which relates to schedule irregularities. In the case of a schedule irregularity, Rule 80(C)(4)(a) provides that the carrier will carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service, or at the carrier’s option.
[37] As Mr. Omer was reprotected on the next flight available to Kuwait City from London, which was 24 hours later, the Agency finds that Air Canada properly applied the terms and conditions set out in Rule 60 of its Tariff regarding schedule irregularities. The Agency also finds that Air Canada is not responsible for Mr. Omer’s hotel expenses while he waited for that flight, as the delay was due to circumstances outside of Air Canada’s control—a situation for which, pursuant to its Tariff, Air Canada is not obligated to provide accommodations.
[38] With regard to the cost of the EgyptAir ticket to return to Toronto, Mr. Omer has not shown that there was any breach of Air Canada’s Tariff. Air Canada is not responsible for his decision to travel home early via EgyptAir. If he had contacted Air Canada prior to buying the EgyptAir ticket, it is possible that he would have received information that may have led him to reconsider his decision to book a return ticket with EgyptAir.
[39] Regarding Mr. Omer’s original return itinerary from Kuwait City to Toronto, Air Canada argues that he was determined to be a “No-Show.” While there is no definition of “No-Show” in Air Canada’s Tariff, the Agency has previously ruled, in Decision No. 17-C-A-2014 (Pfeifer et al v Sunwing), that the common industry expression “No-Show” includes situations where passengers do not present themselves in time for boarding.
[40] As Mr. Omer did not present himself for boarding on the first flight of his return itinerary to Toronto, scheduled on January 22, 2019, the Agency considers that he was a “No‑Show” for his return itinerary, as he did not meet the requirements of Air Canada’s Tariff relating to the check-in time limits for the flights. Rule 70(C) of Air Canada’s Tariff provides that if a passenger fails to meet any of the check-in and boarding requirements, the carrier’s liability is limited to providing a general refund in accordance with Rule 100.
[41] In accordance with Rule 100, Mr. Omer is entitled to a general refund. The Agency accepts Air Canada’s evidence that Mr. Omer is entitled to a reimbursement of CAD 315.40, which represents the applicable taxes.
CONCLUSION
[42] The Agency finds that Mr. Omer did not encounter an obstacle to his mobility that is attributable to Air Canada when he did not receive the assistance that he requested to get to his connecting flight in time. In light of this, the Agency dismisses the accessibility‑related portion of the application.
[43] The Agency also finds that Mr. Omer has established, on a balance of probabilities, that by failing to provide him a general refund, Air Canada did not properly apply the terms and conditions set out in its Tariff with regard to the check-in and boarding requirements and the general refund, as required by subsection 110(4) of the ATR.
ORDER
[44] Therefore, pursuant to section 113.1 of the ATR, the Agency orders Air Canada to compensate Mr. Omer in the amount of CAD 315.40, which constitutes the applicable taxes on his ticket. Air Canada is to pay this amount to Mr. Omer as soon as possible and no later than February 4, 2021.
APPENDIX TO DECISION NO. 111-AT-C-A-2020
Air Canada’s International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and Charges on Behalf of Air Canada Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 and Between the USA and Canada, NTA(A) No. 458
RULE 80 – SCHEDULE IRREGULARITIES
(A) General
(1) Schedules not guaranteed. Times and aircraft type shown in timetables or elsewhere are approximate and not guaranteed, and form no part of the contract of carriage. Schedules are subject to change without notice. No employee, agent or representative of carrier is authorized to bind carrier by any statements or representation as to the dates or times of departure or arrival, or of the operation of any flight. It is always recommended that the passenger ascertain the flight’s status and departure time either by registering for updates on their electronic device, via the carrier’s web site or by referring to airport terminal displays.
….
….
(C) Schedule irregularity
(1) Definition
Schedule irregularity means any of the following:
(a) Delay in scheduled departure or arrival of a carrier’s flight
….
….
(4) In the event of a scheduled irregularity, Carrier will either:
NOTE: Additional services are provided to On My Way customers, as detailed below):
(a) carry the passenger on another of its passenger aircraft or class of service on which space is available without additional charge regardless of the class of service; or, at carrier’s option;
….
RULE 70 – CHECK-IN AND BOARDING TIME LIMITS
(A) Check-in
(1) Recommended
The passenger is recom[m]ended to check-in at least 120 minutes (except for Casablanca and Tel-Aviv: 180 minutes and for domestic flights: 90 minutes) prior to scheduled departure time of the flight on which he/she holds a reservation in order to permit com[p]letion of government formalities and departure procedures.
(2) Time Limit
For international flights, passengers must check-in with his/her baggage, if any, at least 60 minutes for domestic flights other than Toronto City Center, 45 minutes, and for domestic flights from Toronto City Center, 20 minutes, prior to scheduled departure time.
(3) Passenger must check in via self-service device or through an AC agent at the check-in counter within the aforementioned check-in times. Passengers checking baggage must check-in and drop off baggage within the above check-in times.
(B) Boarding
The passenger must be available for boarding at the boarding gate at least 15 minutes (exception for Tel Aviv 60 minutes and Casablanca: 30 minutes, for domestic flights and flights to/from the U.S.: 15 minutes) prior to scheduled departure time of the flight on which he/she holds a reservation.
(C) If passenger fails to meet any of these requirements, the carrier may reassign prereserved seat and/or cancel the reservation of such passenger(s) who arrives past the aforementioned time limits. Carrier is not liable to the passenger for loss or expense due to failure by a passenger to comply with this rule. Carrier’s liability shall be limited to providing a general refund, per rule 100.
RULE 100 – REFUND
….
(E) General refunds
(1) The term “General Refund” (sometimes referred to as “Voluntary Refund”) for the purposes of this paragraph, shall mean any refund of a ticket or portion thereof other than Carrier-Caused refund as defined above, which includes but not limited to circumstances that are not within the airline’s control, [s]uch as situations described in rule 70 (check-in and Boarding Time Limits), rule 75 (refusal to Transport), passenger chooses to no longer travel, and schedule irregularities outside carrier’s control.
(2) Amount of general refund
The amount of general refunds will be as follows:
….
(b) When any ticket coupons have been used, the amount of the refund will be: the difference, if any, between the fare, taxes, fees, charges and surcharges paid and the fare, taxes, fees, charges and surcharges applicable for transportation used, less any applicable cancellations/change fee or penalty, as set out in the applicable fare rules. Note: The most restrictive cancellations/change fee applies.
….
Member(s)
- Date modified: