Decision No. 118-C-A-2022

[1] The applicants purchased tickets with Air Canada to travel from Toronto, Ontario, to Casablanca, Morocco, via Montréal, Quebec, on December 19, 2019, and returning to Toronto via Madrid, Spain. The applicants’ flight from Montréal to Casablanca was cancelled and they were rebooked on an alternate flight departing the next day, 23 hours later. Both parties acknowledge that the applicants were provided with meals and hotel accommodation expenses. The applicants claim other expenses but acknowledge that they are prepaid expenses and that they would not be entitled to them.

[2] Because their arrival in Casablanca was delayed by more than nine hours, the applicants seek CAD 1,000 each in compensation, for a total of CAD 2,000, pursuant to subparagraph 19(1)(a)(iii) of the Air Passenger Protection Regulations (APPR)^{Note 1}.

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether the respondent properly applied its Tariff^{Note 2} 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 take the corrective measures that it considers appropriate or to pay compensation for any expense incurred by a person adversely affected by its failure. The relevant provisions of the ATR, the APPR and the Tariff are set out in the Appendix.

[4] Under sections 12 and 19 of the APPR, which is incorporated into the respondent's Tariff in Rule 5(C), passengers may be entitled to compensation for inconvenience if they experience a flight delay or cancellation within the carrier’s control. Though the APPR forms part of the Tariff, it does not relieve the carrier from applying terms and conditions of its Tariff that are more favourable to the passenger than the obligations set out in the APPR. The other relevant provisions of the Tariff regarding schedule irregularities can be found under Rule 80.

[5] The applicants explain that their flight from Montréal to Casablanca was initially delayed and then cancelled due to a mechanical issue. The applicants state that they had to pay for their own meals and hotel accommodations, but they acknowledge that the respondent refunded them for the full amount of these expenses. The applicants challenge that their flight cancellation was outside the carrier’s control, or within the carrier’s control but required for safety. The applicants explain that scheduled maintenance occurs every day as part of numerous low-level checks required by law before and after operating any aircraft. The applicants state that the respondent’s position that any issue found during these checks would be an unforeseen issue and safety-related is not reasonable. The applicants argue that mandatory pre- and post-flight checks should be considered as part of scheduled maintenance too, and that any issues identified during these checks, which result in a flight cancellation, should be considered as within the carrier’s control. The applicants argue that the only issues that should be considered to be exempt from this are mechanical issues that arise while the aircraft is airborne or in movement on the runway. The applicants argue that the aircraft’s mechanical issue was discovered on the ground and should therefore be classified as a cancellation within the carrier’s control.

[6] The respondent states that the applicants’ flight was cancelled due to an unforeseen mechanical issue. The respondent provided a copy of internal reports and a signed statement from its General Manager of Operational Airworthiness and Compliance to substantiate its claim that the cancellation was required for safety purposes due to an unforeseeable mechanical issue, which occurred on the aircraft scheduled to operate the applicants’ flight during its inbound journey to Montréal. The respondent explains that the aircraft was declared out of service 1 hour and 30 minutes after the applicants’ scheduled departure time. The signed statement submitted by the respondent shows that the aircraft experienced a safety-related issue due to a nose landing gear fault involving a major hydraulic leak that required just over nine hours of repairs before the aircraft could be returned to service. The signed statement also states that scheduled maintenance had already been carried out on the aircraft the previous day, and that therefore this was not a foreseeable or preventable issue.

[7] The respondent submits that it correctly applied the APPR and Rule 80 of its Tariff, which states that schedules are not guaranteed. It further explains that neither the APPR nor its Tariff requires it to provide compensation if the flight was cancelled due to uncontrollable events, and in this case, an unforeseen mechanical issue.

[8] The respondent submits that it made every reasonable effort to minimize the effect of the flight cancellation. Given that the next available flight to Casablanca was scheduled to operate two days later, and in an effort to inconvenience the fewest number of passengers, the respondent created an extra flight the following day to accommodate the passengers.

[9] The respondent argues that as the cancellation was within its control but required for safety purposes, its sole obligations were to offer its passengers alternative travel arrangements and provide standards of treatment as set out in Rule 80(C)(4) of its Tariff and section 11 of the APPR. The respondent submits that it was required to make alternate travel arrangements on a flight operated by any carrier and departing within 48 hours of the departure time that is indicated on the original ticket, and explains that the applicants were rebooked on an alternate flight departing 23 hours later. The respondent states that it also provided meal, hotel, and transportation vouchers to all customers affected by the flight cancellation, but the applicants elected to stay at another hotel. Nonetheless, on March 27, 2020, the respondent issued a cheque in the amount of CAD 202,73 to reimburse the applicants for their expenses incurred in Montréal with regard to meal expenses and hotel accommodations.

[10] The respondent has provided reliable evidence that the reason for the flight cancellation was due to a nose landing gear fault that was noticed by the aircraft crew on the flight into Montréal. The signed statement provided by the respondent shows that the maintenance team in Montréal had a “Nose Wheel Steering Hydraulic Block Filter Housing” replaced on the aircraft. The document further states that the aircraft was up to date with its maintenance program, and that a routine check had been completed the day before.

[11] Though the applicants argue that the definition of a mechanical issue within the carrier’s control but required for safety should be limited to issues that occur while in flight or in movement on the runway, and that pre- and post-flight checks should be classified as scheduled maintenance, the Agency has previously addressed this issue in Decision 122‑C‑A-2021 (APPR Interpretive Decision). The Agency found that pre- and post-flight checks are not activities that can be classified as scheduled maintenance, and that unforeseeable mechanical issues revealed during these checks would be considered within the carrier’s control but required for safety purposes, other than in limited circumstances, such as when the identified issue does not impede the safe operation of the flight, or relates to a situation outside the carrier’s control. The Agency stated in that decision that the purpose of pre- and post-flight checks, which are performed for every flight, is to locate last-minute, unforeseeable issues, if any, that could not have been prevented by regular scheduled maintenance. Therefore, any resulting disruption cannot be anticipated nor planned for. Given the evidence provided by both parties, the Agency finds that the flight cancellation was within the carrier’s control but required for safety.

[12] Section 11 of the APPR outlines the respondent’s responsibilities in this case. With regard to paragraph 11(4)(a), the carrier must provide passengers with information regarding flight cancellations, which the Agency finds the respondent did in this case. This is also consistent with Rule 80(C)(3) of the Tariff.

[13] Under paragraph 11(4)(b) of the APPR, passengers are entitled to the standards of treatment set out in section 14, which in this case required the applicants to be provided with meals and hotel accommodations. Given that both parties agree that the carrier refunded them their hotel and meal costs, the Agency finds the respondent correctly applied this section of the APPR. This is also consistent with Rule 80(C)(5) of the Tariff.

[14] Paragraph 11(4)(c) of the APPR requires the carrier to rebook passengers on an alternative flight that departs within 48 hours of the departure time indicated on their original ticket. In this case, the respondent rebooked the applicants on a flight that departed 23 hours later. This is consistent with Rule 80(C)(4)(a) of the Tariff. Therefore, the Agency finds that the respondent correctly applied the APPR in regard to rebooking the applicants.

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

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Appendix to Decision 118 C-A-2022

Air Transportation Regulations, SOR/88-58

Filing of Tariffs

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.

Air Passenger Protection Regulations, SOR/2019-150

Obligations when required for safety purposes

11(1) Subject to subsection 10(2), this section applies to a carrier when there is delay, cancellation or denial of boarding that is within the carrier’s control but is required for safety purposes.

…

Delay

(3) In the case of a delay, the carrier must

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

(b) if a passenger is informed of the delay 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; and

(c) if the delay is a delay of three hours or more, provide alternate travel arrangements or a refund, in the manner set out in section 17, to a passenger who desires such arrangements.

Cancellation

(4) 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; and

(c) provide alternate travel arrangements or a refund, in the manner set out in section 17.

…

Obligations when within carrier’s control

12(1) Subject to subsection 10(2), this section applies to a carrier when there is delay, cancellation or denial of boarding that is within the carrier’s control but is not referred to in subsections 11(1) or (2).

…

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.

…

Standards of treatment

14(1) If paragraph 11(3)(b) or (4)(b) or 12(2)(b) or (3)(b) applies to a carrier, and a passenger has waited two hours after the departure time that is indicated on their original ticket, the carrier must provide the passenger with the following treatment free of charge:

(a) food and drink in reasonable quantities, taking into account the length of the wait, the time of day and the location of the passenger; and

(b) access to a means of communication.

Accommodations

(2) If paragraph 11(3)(b) or (4)(b) or 12(2)(b) or (3)(b) applies to a carrier and the carrier expects that the passenger will be required to wait overnight for their original flight or for a flight reserved as part of alternate travel arrangements, the air carrier must offer, free of charge, hotel or other comparable accommodation that is reasonable in relation to the location of the passenger, as well as transportation to the hotel or other accommodation and back to the airport.

…

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,

…

(iii) $1,000, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by nine hours or more; and

…

International Passenger Rules and Fares Tariff AC2 containing Local Rules, Fares & 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, CTA 458

Rule 5 Application of Tariff

…

(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.

…

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

…

(3) Information to passengers

Air Canada will promptly provide timely updates, including the reason for the delay or cancellation:

(a) As soon as Air Canada is aware of such a delay or cancellation, and then:

(b) At regular intervals of 30 minutes until a new departure time for the flight is set, or new travel arrangements for passengers have been made; and

(c) As soon as possible when new information is available.

(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;

(b) Endorse to another air carrier with which Air Canada has an agreement for such transportation, the unused portion of the ticket for purposes of rerouting; or at carrier's option;

(c) Reroute the passenger to the destination named on the ticket or applicable portion thereof by its own or other transportation

services; and if the fare for the revised routing or class of service is higher than the refund value of the ticket or applicable portion thereof as determined from rule 100, carrier will require no additional payment from the passenger but will refund the difference if it is lower or.

(5) Except as otherwise provided in applicable local law, in addition to the provisions of this rule, in case of scheduled irregularity within its control (and outside its control, for on my way customers) Air Canada will offer:

(a) For a schedule irregularity lasting longer than 4 hours, a meal voucher for use, where available, at an airport restaurant or our on board cafe, of an amount dependent on the time of

(b) For a schedule irregularity lasting overnight, hotel accommodation subject to availability and ground transportation between the airport and the hotel. This service is only available for out of town passengers.
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