Decision No. 116-C-A-2022

[1] Taylor Hache purchased a round-trip ticket for travel with WestJet from Terrace, British Columbia, to Vancouver, British Columbia, departing on November 26, 2020, and returning on November 29, 2020. However, on November 23, 2020, Mr. Hache was notified that the outbound flight was cancelled and that he was rebooked to travel at 6:40 am the following day on November 27, 2020. Mr. Hache chose to cancel his entire reservation and received a full refund of his ticket.

[2] Mr. Hache seeks compensation for inconvenience due to the cancellation under the Air Passenger Protection Regulations^{Note 1} (APPR) in the amount of CAD 400.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether WestJet properly applied its Tariff^{Note 2} to the ticket that Mr. Hache purchased. If the Agency finds that WestJet failed to properly apply its Tariff, it can direct WestJet to take the corrective measures that the Agency considers appropriate or to pay compensation for any expense incurred by a person adversely affected by WestJet’s failure.

[4] The relevant provisions of the CTA, the APPR and the Tariff are set out in the Appendix. WestJet’s obligations under the APPR are deemed to form part of its Tariff in accordance with subsection 86.11(4) of the CTA.

[5] Mr. Hache states that there was no reason provided for the cancellation and that he believes it was a commercial decision in light of low demand during the COVID-19 pandemic.

[6] WestJet submits that on November 19, 2020, British Columbia’s Provincial Health Officer implemented a temporary pause on all non-essential interprovincial travel and travel throughout British Columbia, asking residents to remain in their own communities and non-residents to postpone their trips to the province until at least December 7, 2020, in an effort to combat the COVID-19 pandemic. WestJet submits that, due to the impact that this had on travel into and within the province, WestJet found it necessary to adjust its flight schedule during that period.

[7] WestJet relies on Agency Determination A-2021-54 to support its argument that this particular adjustment to WestJet’s British Columbia flight schedule was within 14 days of the announcement of the new provincial COVID-19 health orders and recommendations, and that this adjustment would not have been necessary had the health orders and recommendations not been in effect. WestJet considers that the cancellation of Mr. Hache’s flight was caused by reasons outside its control within the meaning of subsection 10(1) of the APPR. Therefore, WestJet submits that Mr. Hache is not entitled to compensation, in accordance with subsection 10(3) of the APPR.

[8] In Determination A-2021-54, the Agency found that carriers may decide to consolidate or cancel flights that are influenced, but not directly caused, by government restrictions related to travel. The Agency noted that the extent to which these types of situations are within the carrier’s control would depend on the specific circumstances. The Agency indicated that it may consider a flight disruption to be outside the carrier’s control when it is, for example, resulting from the announcement of a new government restriction or policy fewer than 14 days before a flight, causing passenger numbers on that flight to drop so significantly that the flight was no longer justified by demand. However, the Agency stated that any particular case would have to be assessed on its merits based on the evidence that the carrier and any other party placed before it.

[9] In this case, WestJet filed flight information from its internal system indicating that Mr. Hache’s flight was cancelled due to “OPNL COVID SAFETY”, and that the cancellation was internally categorized as being outside the carrier’s control. However, while WestJet argues that the new British Columbia provincial health orders and recommendations announced prior to Mr. Hache’s flight required WestJet to adjust its flight schedule, it does not specifically indicate or provide evidence to establish how exactly this particular flight was deemed no longer justifiable in light of the orders and recommendations. Furthermore, the provincial guidance document provided by WestJet in support of its argument uses permissive language, such as “should”, which implies some degree of discretion, rather than binding and mandatory restrictions. Consequently, the Agency finds that this was a provincial advisory which would not constitute an order or instruction from an official of a state within the meaning of subsection 10(1)(l) of the APPR and, therefore, finds that the cancellation of Mr. Hache’s flight was within WestJet’s control.

[10] The Agency finds that Mr. Hache’s round-trip ticket was fully refunded in accordance with Rule 90(I)(4)(f) of the Tariff and subsection 17(2) of the APPR. Rule 95(C) of the Tariff and paragraph 19(2)(a) of the APPR provide that a passenger is entitled to compensation for inconvenience in the amount of CAD 400 when they are informed 14 days or less about a cancellation within the carrier’s control and are refunded the ticket price rather than rebooked to travel at another time.

[11] In light of the above, the Agency finds that Mr. Hache is entitled to compensation for inconvenience in the amount of CAD 400.

Order

[12] Pursuant to section 67.1 of the CTA, the Agency orders WestJet to compensate Mr. Hache in the amount of CAD 400, as soon as possible and no later than November 8, 2022.
 

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Appendix to Decision 116-C-A-2022

Canada Transportation Act, SC 1996, c 10

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.

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.

86.11(4) The carrier’s obligations established by a regulation made under subsection (1) are deemed to form part of the terms and conditions set out in the carrier’s tariffs in so far as the carrier’s tariffs do not provide more advantageous terms and conditions of carriage than those obligations.

Air Passenger Protection Regulations, SOR/2019-150

Obligations – situations outside carrier’s control

10(1) This section applies to a carrier when there is delay, cancellation or denial of boarding due to situations outside the carrier’s control, including but not limited to the following:

…

(l) an order or instruction from an official of a state or a law enforcement agency or from a person responsible for airport security.

…

10(3) When there is delay, cancellation or denial of boarding due to situations outside the carrier’s control, it must

(a) provide passengers with the information set out in section 13;

(b) in the case of a delay of three hours or more, provide alternate travel arrangements, in the manner set out in section 18, to a passenger who desires such arrangements; and

(c) in the case of a cancellation or a denial of boarding, provide alternate travel arrangements in the manner set out in section 18.

…

Obligations when within carrier’s control

…

Cancellation

12(3) In the case of a cancellation, the carrier must

…

(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.

Refund

17(2) If the alternate travel arrangements offered in accordance with subsection (1) do not accommodate the passenger’s travel needs, the carrier must

(a) in the case where the passenger is no longer at the point of origin that is indicated on the ticket and the travel no longer serves a purpose because of the delay, cancellation or denial of boarding, refund the ticket and provide the passenger with a confirmed reservation that

(i) is for a flight to that point of origin, and

(ii) accommodates the passenger’s travel needs; and

(b)  in any other case, refund the unused portion of the ticket.

Compensation in case of refund

19(2) If paragraph 12(2)(c) or (3)(c) applies to a carrier and the passenger’s ticket is refunded in accordance with subsection 17(2), the carrier must provide a minimum compensation of

(a) $400, in the case of a large carrier; …

Local Domestic Tariff

Rule 90: Schedule Irregularities, Delay, Cancellation and Denied Boarding

…

(I) Guest Options – Re-Rerouting or Refund

…

4. In the event of a Flight Cancellation or Denial of Boarding within the Carrier’s control or a Flight Cancellation or Denial of Boarding within the Carrier’s control but required for safety purposes, the Carrier will provide the following:

…

f. If the alternative travel arrangements do not meet the passenger’s needs, the Carrier will refund the unused portion on the ticket. If the passenger is no longer at the point of origin and the travel no longer serves a purpose because of the delay, the Carrier will refund the ticket and provide a confirmed reservation for a flight that is to the point of origin and accommodates the passenger’s travel needs. Refunds will be paid by the method used for the original payment and to the person who purchased the ticket or additional service.

…

Rule 95: Compensation for Delays, Cancellations and Denial of Boarding

…

(C) For Flights Departing On or After December 15, 2019: Compensation for Inconvenience resulting from Delays or Cancellations within the Control of the Carrier

If a passenger is informed 14 days or less before the departure time on their ticket that the arrival of their flight at the destination that is indicated on their ticket will be delayed by at least three hours, and the delay is a caused by a situation under the Carrier’s control, compensation will be provided if a passenger files a request for compensation with the carrier before the first anniversary of the day on which the flight delay occurred.

Within 30 days from the date on which the carrier receives the request, the carrier will provide the compensation or an explanation why the compensation is not payable.

The Carrier will provide compensation in the following amounts to Guests who are delayed due to delay or cancellation and when that delay is within the Control of the Carrier and when the passenger was informed 14 days or less about the delay. Regardless of the Fare paid, Guests are entitled to a monetary compensation as follows:

a. no compensation if the delay is less than three hours;

b. $400, if the delay is three hours or more but less than six hours;

c. $700, if the delay is more than six hours but less than nine hours; and

d. $1000, if the delay is more than nine hours.

If a passenger is informed 14 days or less before the departure time on their ticket that the arrival of their flight at the destination that is indicated on their ticket will be delayed and the passengers ticket is refunded, the Carrier will compensate the passenger in the amount of $400, if compensation is requested by the passenger.

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