Decision No. 113-C-A-2022

September 12, 2022

APPLICATION by Hamad Alenezy against Türk Hava Yollari Anonim Ortakligi (Turkish Airlines), pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding a refusal to transport.

Case number: 
22-11892

[1] Hamad Alenezy purchased a ticket to travel from Vancouver, British Columbia, to Jeddah, Saudi Arabia, via Istanbul, Turkey, on September 21, 2021. However, upon arrival in Istanbul, Turkish Airlines refused to transport him to Jeddah because of Saudi Arabia’s COVID-19 restrictions. Mr. Alenezy then purchased two new tickets: one from Istanbul to Dubai, United Arab Emirates, with Turkish Airlines and the other from Dubai to Jeddah with FlyDubai. Mr. Alenezy travelled without incident on the new itinerary and arrived in Jeddah on September 24, 2021.

[2] Mr. Alenezy seeks compensation for the following:

  • the original business class ticket in the amount of CAD 2,911.46;
  • the new business class ticket from Istanbul to Dubai in the amount of USD 520;
  • the new ticket from Dubai to Jeddah in the amount of AED 1,081.50;
  • one night’s hotel accommodation in Dubai in the amount of AED 549.98; and
  • a COVID-19 polymerase chain reaction (PCR) test in the amount of CAD 44.

[3] Mr. Alenezy also seeks compensation for pain and suffering and for missing one night of prepaid hotel accommodation in Jeddah.

[4] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether Turkish Airlines properly applied its TariffNote 1 to the ticket that Mr. Alenezy purchased. If the Agency finds that Turkish Airlines failed to properly apply its Tariff, it can direct Turkish Airlines to pay compensation for any expense incurred by a person adversely affected by the carrier’s failure. With respect to Mr. Alenezy’s request for reimbursement of his prepaid hotel accommodation in Jeddah, given that the payment was made prior to him being refused transportation and was not incurred as a direct result of the refusal to transport, the Agency has no authority to award compensation for this expense. Furthermore, the Agency does not have the authority to award compensation for pain and suffering.

[5] The relevant provisions of the ATR and the Tariff are set out in the Appendix.

[6] Mr. Alenezy indicates that he is a Canadian citizen holding a Kuwaiti passport. He submits that when he was refused transportation in Istanbul, Turkish Airlines staff advised him to book a new flight to a destination other than Jeddah and this is what he did.

[7] Turkish Airlines submits that the Saudi government issued a Notice to Air Missions (NOTAM) in October 2020 under which only Saudi citizens and residents could enter the country from Turkey: that is no tourist, pilgrimage or work visa holders were accepted for transit through the Istanbul airport at the time of Mr. Alenezy’s travel. Turkish Airlines submits that these restrictions were lifted on May 25, 2022. Turkish Airlines argues that it cannot be held responsible for the actions of the Saudi government, that such actions are outside its control, and that, therefore, it is not liable to pay compensation to Mr. Alenezy.

[8] Mr. Alenezy argues that the restrictions enforced by the Saudi government did not apply to him as he is also a Gulf Cooperation Council citizen. He also argues that if there were restrictions on travel from Istanbul to Jeddah, Turkish Airlines should not have allowed him to depart from Vancouver.

[9] Rule 25(A)(4)(f) of the Tariff provides that the carrier has the right to refuse onward carriage to any passenger if carrying the passenger would be in breach of the applicable law, regulations or requirements of any country to be flown from, into or over. Rule 25(A)(3) provides that the sole recourse for any passenger refused transportation is the recovery of any unused value of their ticket in accordance with the Tariff.

[10] The Agency finds that it was reasonable for Turkish Airlines to determine that Mr. Alenezy could not enter Saudi Arabia from Istanbul based on the NOTAM issued at the time, and that no evidence was filed to demonstrate that Mr. Alenezy was exempt from the restrictions enforced. The Agency, therefore, finds that Turkish Airlines properly applied the terms and conditions set out in Rule 25(A)(4)(f) of the Tariff when it refused to transport Mr. Alenezy from Istanbul to Jeddah. Accordingly, Mr. Alenezy is not entitled to compensation for his expenses. However, he is entitled to a refund.

[11] While Mr. Alenezy seeks reimbursement of the full amount of his original ticket, the evidence demonstrates that he travelled from Vancouver to Istanbul on this ticket. Rule 90(E)(2) of the Tariff provides that, in the event of a refusal to transport when a portion of the ticket has been used, the carrier will refund the passenger an amount that is equal to the fare, less any applicable service charges and communication expenses, applicable to the unused transportation from the point of termination to the destination named on the ticket. Accordingly, Mr. Alenezy is only entitled to the unused portion of his original ticket.

[12] Given that there is no evidence that the unused portion of the ticket has been refunded, the Agency finds that Turkish Airlines failed to properly apply the terms and conditions set out in Rule 90(E)(2) of the Tariff by not providing Mr. Alenezy with a refund of the unused portion of his ticket.

ORDER

[13] Pursuant to section 113.1 of the ATR, the Agency orders Turkish Airlines to:

  1. refund Mr. Alenezy the difference between the fare paid and the fare for the transportation used excluding service charges, as per Rule 90(E)(2) of its Tariff;
  2. notify the Agency once the refund has been issued to Mr. Alenezy; and
  3. file with the Agency, with a copy to Mr. Alenezy, a detailed summary of how the refund was calculated;

all of which must be done as soon as possible and no later than October 26, 2022. If the Agency is not satisfied with the calculation filed by Turkish Airlines, the Agency may order Turkish Airlines to pay an amount that the Agency considers appropriate.
 


APPENDIX TO DECISION 113-C-A-2022

Air Transportation Regulations, SOR/88-58

110(4) Where a tariff is filed containing the date of publication and the effective date and is consistent with these Regulations and any orders of the Agency, the tolls and terms and conditions of carriage in the tariff shall, unless they are rejected, disallowed or suspended by the Agency or unless they are replaced by a new tariff, take effect on the date stated in the tariff, and the air carrier shall on and after that date charge the tolls and apply the terms and conditions of carriage specified in the tariff.

113.1(1) If an air carrier that offers an international service fails to apply the fares, rates, charges or terms and conditions of carriage set out in the tariff that applies to that service, the Agency may, if it receives a written complaint, 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 that are applicable to the service it offers and that were set out in the tariff.

International Passenger Rules and Fares Tariff TK1 Containing Local Rules, Fares and Charges on Behalf of Türk Hava Yollari Anonim Ortakligi (Turkish Airlines Inc.) c/o/b Turkish Airlines and Turkish Cargo Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Area 1/2/3, CTA 530

Rule 25 Refusal to Transport – Limitations of Carriage

(A) Refusal cancellation or removal

(1) The acceptance of passengers with health problems may be restricted in the interest of their own and of other passengers safety. The final decision rests with the pilot in command. Carrier is entitled to insist on a written report of fitness for air travel issued by a medical doctor.

(2) If question arises of any aircraft being overloaded, carrier shall decide which passengers or articles will be carried.

(3) Subject to the provisions of rule 86 (flight disruptions – carriage to/from Canada) and rule 87 (denied boarding compensation) herein, the sole recourse of any person so refused carriage or remove en route for any reason specified in the foregoing paragraphs shall be recovery of the refund value of the unused portion of his/her ticket as hereinafter provided in rule 90 (refunds).

(4) Carrier is entitled to refuse carriage or onward carriage, or curtail carriage for passengers or their baggage:

(f) Carriage would be in breach of the applicable law, regulations or requirements of the country of departure or destination or of the country over which the aircraft is flying at the time;

Rule 90 Refunds

(A) General

(1) In case of refund, whether due to failure of carrier to provide the accommodation called for by the ticket, or to voluntary change of arrangements by the passenger, the conditions and amount of refund will be governed by carrier’s tariffs.

(D) Involuntary refunds

See also rule 80 (revised routings, failure to carry and missed connections), rule 86 (flight disruptions to/from Canada) and rule 87 (denied boarding compensation) for the purpose of this paragraph, the term “involuntary refund” shall mean any refund to a passenger who is prevented from using the carriage provided for in his ticket because of cancellation of flight, inability of carrier to provide previously confirmed space, substitution of a different type of equipment or different class of service by carrier, missed connections, postponement or delay of flight, omission of a scheduled stop, or removal or refusal to carry under conditions prescribed in par. (A)(1) and (A)(2) of rule 25 (refusal to transport- limitations of carrier). involuntary refunds will be computed as follows:

(E) Voluntary refunds

For the purpose of this paragraph, the term “voluntary refund” shall mean any refund of a ticket or portion thereof (if the conditions applicable to the ticket allow for such refund) other than an involuntary refund, as described in paragraph (d) of this rule. voluntary refunds shall be computed as follows:


(2)  If a portion of a ticket has been used, refund will be made in an amount equal to the difference, if any, between the fare paid and the applicable fare between the points between which the ticket has been used, less any applicable service charge and communication expenses.  (see rule nos. 60 (reservations) and 65 (tickets)).

 


 

Member(s)

Mary Tobin Oates
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