Decision No. 12-C-A-2022

[1] The applicants purchased round-trip tickets to travel with the respondent from Toronto, Ontario, to Montego Bay, Jamaica, departing on June 5, 2019, and returning on June 12, 2019. They were notified of schedule changes for their flights prior to their date of departure. The revised itinerary resulted in them arriving in Montego Bay four hours later and departing nearly six hours earlier than indicated on their original itinerary. The applicants’ inbound flight to Toronto was later delayed in departing.

[2] In addition, when the applicants returned to Toronto, they discovered that a piece of their baggage was damaged, and that liquid from broken bottles inside had damaged clothing, shoes and electronics.

[3] The applicants seek CAD 5,159.52 in compensation for the damage to their baggage, as well as any compensation that the Agency deems acceptable due to the delay they experienced and in light of their lost vacation time due to the schedule changes.

[4] In this decision, the Agency’s role is to decide whether the respondent has properly applied the conditions of its Tariff^{Note 1}to the tickets the applicants purchased. The relevant provisions of the Tariff are set out in the Appendix.

[5] If the Agency finds that the respondent failed to properly apply its Tariff, it may direct the respondent to take corrective measures that it considers appropriate or to pay compensation for any expenses incurred by a person adversely affected by its failure. However, the Agency cannot award general damages, such as for loss of enjoyment or lost vacation time. Furthermore, the Agency does not have the authority to enforce provisions of the Competition Act^{Note 2} , referenced by the plaintiffs in their complaint.

SCHEDULE CHANGE

[6] Given that Rule 15.1(d) of the Tariff indicates that flight times shown in timetables or elsewhere are not guaranteed, the Agency finds that the applicants have not established that the respondent improperly applied its Tariff when it made schedule changes to their flights prior to their date of departure.

[7] Rule 15.1(f) of the Tariff states that the respondent will make reasonable efforts to inform passengers of schedule changes. The Agency finds that the respondent informed the applicants of the schedule changes through Red Label Vacations Inc., as is typical when a customer books tickets through a travel agent. In light of this, the Agency finds that the respondent properly applied Rule 15.1(f) of its Tariff.

[8] The respondent has acknowledged that at check-in, due to an error in its system, the applicants’ flight still appeared to be departing at the original scheduled time. The Agency encourages the respondent to address its system deficiencies, as this error clearly confused the applicants and caused them unnecessary stress. However, the applicants have not claimed any expenses as a result of this error.

FLIGHT DELAY

[9] On June 12, 2019, the applicants were scheduled to arrive in Toronto at 8:00 p.m. Evidence submitted by the respondent shows that their flight actually arrived at 12:59 a.m. on June 13, 2019, which aligns with the time that the applicants claim to have collected their baggage. Based on this, the applicants experienced a delay of four hours and 59 minutes in reaching their destination. However, the Agency cannot order compensation for inconvenience under subsection 19(1) of the Air Passenger Protection Regulations SOR/2019-150 because they were not in force at the time of this delay.

[10] According to Rule 16.1(a) of the Tariff, when a passenger experiences a flight delay of more than four hours, the respondent will provide them with a meal voucher when it is safe, practical and timely to do so. The respondent submits that it provided meals for the applicants during the delay, which was not disputed by the applicants. In light of this, the Agency finds that the respondent properly applied this Rule.

DAMAGED BAGGAGE

[11] Rule 11.3(b) of the Tariff provides that in the case of damaged baggage, the person entitled to delivery of the baggage must complain to the respondent in writing within seven calendar days. If no claim is made within this time period, no action may be taken against the respondent. These rules are also set out in Article 31 of the Montreal Convention^{Note 3} , which is incorporated into the respondent’s Tariff in Rule 10.1. The applicants were entitled to delivery of the baggage, and they were therefore required to show they had made a complaint in writing directly to the respondent regarding the damage within seven days. There is no evidence that demonstrates they notified the respondent of the damage to their baggage in writing within this time frame. The Agency therefore must find that the respondent is not liable for the damage to the applicants’ baggage.

[12] In light of the above, the Agency dismisses the application
 

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APPENDIX TO DECISION NO. 12-C-A-2022

Tariff Containing Rules Applicable to Scheduled Services for the Transportation of Passengers and Baggage or Goods Between Points in Canada on the One Hand and Points Outside Canada on the Other Hand, CTA (A) No. 3

Rule 10. Limitation of Liability – Passengers

10. 1 For travel governed by the Montreal Convention

For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this Tariff which may be inconsistent with those rules.

Rule 11. Limitation of Liability for Baggage or Goods

11. 3 For travel governed by either the Montreal Convention or the Warsaw Convention

….

b) In the case of damage or partial loss, the Person entitled to delivery must complain to the Carrier forthwith after discovery of the damage or partial loss, and, at the latest, within seven days from the date of receipt of the Baggage. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the Baggage has been placed at his disposal. In the case of loss, the complaint must be made at the latest within 30 days from the date the Baggage should have been delivered. The Passenger must notify the Carrier immediately upon arrival in the case of missing checked-in Baggage. Every complaint, whether for loss, partial loss, damage or delay, must be made in writing and must be dispatched within the times aforesaid. Failing complaint within the times aforesaid, no action shall lie against the Carrier.

Rule 15. Responsibility for Schedules and Operations

15.1 General

d) The Carrier will endeavor to transport the Passenger and Baggage with reasonable dispatch, but times shown in timetables or elsewhere are not guaranteed. No employee, agent or representative of the Carrier is authorized to bind the Carrier by any statement or representation regarding the dates or times of departure or arrival or the operation of any flight unless stated in writing. It is always recommended that the Passenger communicate with the Carrier either by telephone, electronic device or via the Carrier’s website or to refer to airport terminal displays to ascertain the flight’s status and departure time.

….

f) Passengers have a right to information on flight times and schedule changes. In the event of a delay, an advanced flight departure or schedule change the Carrier will make reasonable efforts to inform the Passengers of delays, proposed advanced flight departures and schedule changes, and, to the extent possible, the reasons for them.

Rule 16. Traveller’s Rights

16.1

(a) If a flight is delayed and the delay between the scheduled departure of the flight and the actual departure of the flight exceeds 4 hours, the Carrier will provided the Passenger with a meal voucher when it is safe, practical and timely to do so.

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.

Convention for the Unification of Certain Rules for International Carriage by Air ‑ Montreal Convention

Article 31 — Timely Notice of Complaints

1. Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4.
2. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.
3. Every complaint must be made in writing and given or dispatched within the times aforesaid.
4. If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part.