Decision No. 112-C-A-2022
APPLICATION by Campbell Hennessy and Lisa Matthes (applicants) against Air Canada (respondent) pursuant to subsection 67(3) of the Canada Transportation ActNote 1, (CTA), regarding a flight cancellation.
[1] The applicants purchased one-way tickets to travel from Winnipeg, Manitoba, to Toronto, Ontario, with Air Canada on October 22, 2020. The applicants’ flight was cancelled and they were rebooked on an alternate flight departing later the same day.
[2] The applicants seek compensation of CAD 400 each under the Air Passenger Protection RegulationsNote 2 (APPR) for the flight cancellation, for a total of CAD 800. The applicants also seek CAD 100 in compensation for the inconvenience that they have faced in dealing with this application.
[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied its TariffNote 3 to the tickets the applicants purchased. If the Agency finds that the respondent failed to properly apply its Tariff, it can direct the respondent to pay compensation for any expense incurred by a person adversely affected by its failure. The relevant provisions of the CTA, the APPR and the Tariff are set out in the Appendix. The Agency does not have jurisdiction to order compensation for inconvenience in dealing with an application; accordingly, it will not consider this issue.
[4] Under the APPR, which is incorporated into the respondent’s Tariff in Rule 5(C) and Rule 80(B), passengers may be entitled to compensation if they experience a flight delay or cancellation within the carrier’s control.
[5] The applicants state that they were originally scheduled to travel from Winnipeg to Toronto on October 22, 2020, on Flight AC260, which was to depart at 8:20 am and arrive at 11:44 am. More than a month prior to the flight’s departure, the respondent cancelled this flight and replaced it with Flight AC262, which was scheduled to depart at 9:15 am and arrive at 12:29 pm on October 22, 2020.
[6] The applicants state that on October 15, 2020, one week prior to the flight’s scheduled departure, the respondent cancelled Flight AC262 and rebooked them on Flight AC7508, which was to depart the same day, but arrive in Toronto at 7:40 pm (more than seven hours later than originally scheduled). The applicants state that they then contacted the respondent to try to reschedule to an earlier flight. The applicants were then rebooked on Flight AC7506 which departed Winnipeg on October 22, 2020, at 1:50 pm and arrived in Toronto at 5:10 pm.
[7] The respondent states that it had to cancel Flight AC262 due to extraordinary circumstances caused by the pandemic. It submits that on October 13, 2020, the Government of Manitoba issued a public health order imposing self-isolation for persons entering the province effective October 14, 2020. It explains that the new travel restrictions and the self-isolation order led to an unprecedented erosion of demand on flights to and from Manitoba. The respondent submits that as a result of this new and unforeseen government advisory, some flights were kept (sometimes on smaller aircraft) and others were cancelled due to the decrease in passengers travelling to Manitoba. The respondent explains that Flight AC262 was cancelled on October 15, 2020, as a direct result of the public health order issued by the Province of Manitoba, a situation that was unforeseen and entirely outside the respondent’s control. The respondent explains that the applicants ultimately travelled to Toronto on the same day, with an arrival delay of 4 hours and 28 minutes later than their original scheduled arrival time.
[8] The applicants point out that the public health order issued October 13, 2020, was actually a loosening of restrictions that had already been in force since June 25, 2020. The applicants explain that the first travel restrictions were ordered in April 2020, and that the respondent, therefore, had six months to prepare for this order. The applicants argue that this is not a valid excuse for a cancellation seven days prior to travel and that, as a result, they are entitled to compensation for flight cancellations within the carrier’s control under the APPR.
[9] An assessment by the Agency of both public health orders shows that the applicants’ version of events is accurate. Indeed, the October 13 public health order appears to loosen travel restrictions not limit them; therefore, the respondent’s arguments that it had to cancel flights as a result is not supported by evidence. The respondent has failed to explain how this new public health order would have resulted in unprecedented cancellation of flights given it had been in effect for some time; nor has it provided any evidence of this impact having actually occurred (by providing evidence of passenger cancelling flights en masse, for example). Based on the above, the Agency finds that the cancellation of Flight AC262 was within the carrier’s control.
[10] Subsection 12(3) of the APPR outlines a carrier’s responsibility in the event of a flight cancellation within its control. Paragraph 12(3)(c) requires carriers to provide alternate transportation; in this case, the respondent fulfilled this requirement. Under paragraph 12(3)(d) of the APPR, the carrier must provide compensation for inconvenience according to section 19 if it cancels a flight less than 14 days before departure. As the applicants’ flights were cancelled seven days before departure, they are entitled to this compensation. The applicants arrived in Toronto more than five hours later than the revised itinerary’s planned arrival time. Subparagraph 19(1)(a)(i) states that delays of three hours or more but less than six hours entitle the passenger to CAD 400 in compensation. Therefore, the Agency finds that each of the applicants are entitled to compensation for inconvenience in the amount of CAD 400. This is also consistent with Tariff Rule 80 (B)(2)(d) that requires compensation for cancellations within the carrier’s control as provided for in the APPR.
ORDER
[11] Pursuant to section 67.1 of the CTA, the Agency orders the respondent to compensate the applicants in the amount of CAD 800 as soon as possible and no later than October 25, 2022.
APPENDIX TO DECISION 112 C-A-2022
Canada Transportation Act, SC 1996, c 10
No fares, etc., unless set out in tariff
67(3)The holder of a domestic licence shall not apply any fare, rate, charge or term or condition of carriage applicable to the domestic service it offers unless the fare, rate, charge, term or condition is set out in a tariff that has been published or displayed under subsection (1) and is in effect.
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Fares or rates not set out in tariff
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
Cancellation
12(3) In the case of a cancellation, the carrier must
(a) provide passengers with the information set out in section 13;
(b) if a passenger is informed of the cancellation less than 12 hours before the departure time that is indicated on their original ticket, provide the standard of treatment set out in section 14;
(c) provide alternate travel arrangements or a refund, in the manner set out in section 17; and
(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.
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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,
(i) $400, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by three hours or more, but less than six hours.
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Domestic Tariff General Rules Applicable to the Transportation of Passengers and Baggage, CTA (A) No. 3
RULE 5 – APPLICATION OF TARIFF
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(C) Air Passenger Protection Regulations (“APPR”)
(1) The obligations of the carrier under APPR form part of this tariff and supersede any incompatible or inconsistent term and condition of carriage set out in the tariff to the extent of such inconsistency or incompatibility, but do not relieve the carrier from applying terms and conditions of carriage of this tariff that are more favorable to the passenger than the obligations set out in the APPR.
(2) For the purposes of APPR, Air Canada, Air Canada Rouge and any airlines operating under the Air Canada Express banner are all considered a large carrier.
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RULE 80 – SCHEDULE IRREGULARITIES
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B.Schedule Irregularity
This rule only applies to flights operated by Air Canada, Air Canada Express and Air Canada Rouge.
(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;
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Member(s)
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