Decision No. 120-C-A-2022
Application by Jerry Gannon (applicant) against WestJet (respondent), pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), concerning a flight delay.
[1] The applicant was scheduled to travel from Phoenix, Arizona, to Thunder Bay, Ontario, via Calgary, Alberta, and Toronto, Ontario, departing on December 20, 2019. The flight from Calgary to Toronto, Flight WS0668, was delayed because the aircraft returned to the gate to change out its crew prior to take-off. New crew boarded, and the flight departed 53 minutes late.
[2] This delay resulted in the applicant missing their connecting flight from Toronto to Thunder Bay. The respondent rebooked the applicant on the next available flight, which was not until the next day. The applicant arrived in Thunder Bay on December 21, 2019, at 6:35 pm, 18 hours and 15 minutes later than originally scheduled. The respondent provided the applicant with meal vouchers and hotel accommodation in Toronto for the evening of December 20, 2019.
[3] The applicant seeks compensation for inconvenience in the amount of CAD 1,000 as set out in the Air Passenger Protection RegulationsNote 1 (APPR). They also seek a fine against the respondent, an apology and “extra credit” based on the applicant’s allegation that the respondent misinformed passengers regarding the cause of the delay.
Preliminary matter
[4] The Agency’s authority to award remedies is bound by what is written in law. The Agency cannot issue a fine, award damages in the form of “extra credits” or order apologies. Therefore, the Agency will not consider these aspects of the application.
Flight delay
[5] In this decision, the Agency’s role is to decide whether the respondent properly applied its TariffNote 2 to the ticket that the applicant purchased. The relevant provisions of the ATR, the APPR and the Tariff are set out in the Appendix.
[6] The APPR is incorporated into the respondent’s Tariff under Rule 12(F). Under section 12 of the APPR, compensation for inconvenience is owed only in situations within the carrier’s control.
[7] The applicant submits that the delay was within the respondent’s control. They claim that while onboard Flight WS0668, they were seated near one of the respondent’s “deadheading” pilots, that is a pilot travelling on the flight, but not working. The applicant states that they overheard the deadheading pilot tell another passenger that they were being called up for duty because the pilot assigned to the flight had flown too many hours and was unable to pilot the aircraft. The applicant argues that the delay was therefore a result of a pilot scheduling issue and that the respondent should have had contingency plans to deal with this issue.
[8] The respondent submits that the delay was outside its control. It submits that the reason for the delay was that one of the flight crew members was injured due to turbulence on the incoming flight, Flight WS1467. After discussing the incident with pilot management, the respondent determined that its flight standards required that the all front-end crew for Flight WS0668, who had also operated Flight WS1467, be removed from duty. The respondent decided to call the deadheading pilot seated in the passenger cabin of Flight WS0668 for duty as this would result in the least amount of delay. The aircraft returned to the gate, the original crew disembarked, and a new flight manifest was filed. In support of its position, the respondent provided operational notes that were dated December 20, 2019.
[9] When the applicant’s version of events differs from the respondent’s, the Agency must determine which version is more likely, as the Agency set out in Decision 426-C-A-2013 (Gibbins v Société Air France). Having reviewed the evidence, the Agency finds that it is more likely that the delay was caused by having to replace the front-end crew as a result of unforeseen injuries caused by turbulence on a prior flight, rather than the result of crew constraints. The Agency finds that the respondent’s version is more likely because the respondent filed evidence of the incident from a report that was prepared shortly after the event took place. In addition, rule 75(A) of the Tariff states that no employee, agent or representative of the carrier is authorized to make the carrier liable for any statement they make about the operation of any flight. In other words, the respondent is not legally responsible for any information that the applicant may have overheard on the flight from the deadheading pilot.
[10] The Agency therefore finds that the delay was outside the respondent’s control under subsection 10(1) of the APPR.
[11] Once this is determined, specific obligations for situations outside the carrier’s control, which are listed in subsection 10(3) of the APPR, must be met. Paragraph (a) states that the respondent must communicate with passengers, as per section 13 of the APPR, about the reason for the delay and any compensation or standards of treatment available to them. Since the respondent provided evidence that it sent an email and left a voicemail for the applicant on December 20, 2019, the Agency finds that it fulfilled this obligation.
[12] Rule 75(B)(1)(f) of the Tariff and paragraph 10(3)(b) of the APPR states that the carrier should provide alternative travel arrangements for the applicant to complete their itinerary as soon as possible. Paragraph 10(3)(b) refers to section 18 for provisions related to the onward carriage. Paragraph 18(1)(a)(i) states that a confirmed reservation must be provided for a flight that departs within 48 hours of the event that caused the delay. Neither party provided evidence of when the applicant’s flight departed on December 21, 2019, but since the applicant submits that they arrived at their destination less than 19 hours after their originally scheduled arrival, the Agency finds that the respondent also fulfilled its obligation to rebook the applicant on a flight that departed within 48 hours of the incident. In addition, the respondent provided a standard of care to the applicant in the form of hotel accommodations and meal vouchers, which it was not obligated to do in a situation where the delay was outside its control.
[13] In light of the above, the Agency further finds that the applicant is not entitled to compensation for inconvenience as set out under section 12 of the APPR and dismisses the application.
Appendix to Decision 120-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 The Agency may
(a) suspend any tariff or portion of a tariff that appears not to conform with subsections 110(3) to (5) or section 111 or 112, or disallow any
tariff or portion of a tariff that does not conform with any of those provisions; and
(b) establish and substitute another tariff or portion thereof for any tariff or portion thereof disallowed under paragraph (a).
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.
(2) If the written complaint is with respect to a term or condition of carriage concerning an obligation prescribed by regulations made under subsection 86.11(1) of the Act, it must have been filed by a person adversely affected by the failure to apply the term or condition.
(3) The Agency may make applicable, to some or to all passengers of the same flight as the complainant, all or part of the Agency’s decision respecting a complaint related to any term or condition of carriage concerning any obligation prescribed by regulations made under paragraph 86.11(1)(b) of the Act, to the extent that it considers appropriate.
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:
(a) war or political instability;
(b) illegal acts or sabotage;
(c) meteorological conditions or natural disasters that make the safe operation of the aircraft impossible;
(d) instructions from air traffic control;
(e) a NOTAM, as defined in subsection 101.01(1) of the Canadian Aviation Regulations;
(f) a security threat;
(g) airport operation issues;
(h) a medical emergency;
(i) a collision with wildlife;
(j) a labour disruption within the carrier or within an essential service provider such as an airport or an air navigation service provider;
(k) a manufacturing defect in an aircraft that reduces the safety of passengers and that was identified by the manufacturer of the aircraft concerned, or by a competent authority; and
(l) an order or instruction from an official of a state or a law enforcement agency or from a person responsible for airport security.
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Obligations
(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
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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).
Delay
(2) 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 them with the standard of treatment set out in section 14;
(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; and
(d) if a passenger is informed 14 days or less before the departure time on their original ticket that the arrival of their flight at the destination that is indicated on that original ticket will be delayed, provide the minimum compensation for inconvenience in the manner set out in section 19.
Cancellation
(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.
Denial of boarding
(4) In the case of a denial of boarding, the carrier must
(a) provide passengers affected by the denial of boarding with the information set out in section 13;
(b) deny boarding in accordance with section 15 and provide the standard of treatment set out in section 16 to passengers affected by the denial of boarding;
(c) provide alternate travel arrangements or a refund, in the manner set out in section 17; and
(d) provide the minimum compensation for inconvenience for denial of boarding in the manner set out in section 20.
Information — cancellation, delay, denial of boarding
13 (1) A carrier must provide the following information to the passengers who are affected by a cancellation, delay or a denial of boarding:
(a) the reason for the delay, cancellation or denial of boarding;
(b) the compensation to which the passenger may be entitled for the inconvenience;
(c) the standard of treatment for passengers, if any; and
(d) the recourse available against the carrier, including their recourse to the Agency.
Communication every 30 minutes
(2) In the case of a delay, the carrier must communicate status updates to passengers every 30 minutes until a new departure time for the flight is set or alternate travel arrangements have been made for the affected passenger.
New information
(3) The carrier must communicate to passengers any new information as soon as feasible.
Audible and visible announcement
(4) The information referred to in subsection (1) must be provided by means of audible announcements and, upon request, by means of visible announcements.
Method of communication
(5) The information referred to in subsection (1) must also be provided to the passenger using the available communication method that they have indicated that they prefer, including a method that is compatible with adaptive technologies intended to assist persons with disabilities.
Alternate arrangements — outside carrier’s control
18(1) If paragraph 10(3)(b) or (c) applies to a carrier, it must provide the following alternate travel arrangements free of charge to ensure that passengers complete their itinerary as soon as feasible:
(a) in the case of a large carrier,
(i) a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within 48 hours of the end of the event that caused the delay, cancellation or denial of boarding,
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International Passenger Rules and Fares Tariff WS1 Containing Local Rules, Fares & Charges on behalf of WestJet applicable to the Transportation of passengers and baggage between points in United States/Canada and points in Area 1/2/3 and between points in the US and points in Canada, CTA 518
Rule 12 Application of Tariff
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(F) Air passenger protection regulations (appr)
The obligations of the carrier under the air passenger protection regulations (appr) form part of the 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 that are more favorable to the passenger than the obligations set out in the appr.
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Rule 75 Schedule Irregularities
(A) General
Schedule are not guaranteed. Flight schedules are subject to change without notice, and the times shown on WestJet’s published schedules, tickets, timetable and advertising are not guaranteed and form no part of this contract. The carrier will not be responsible for errors or omissions either in timetables or other representation of schedules. No employee, agent or representative of the carrier is authorized to bind the carrier by any statement of representation regarding the dates or times of departure or arrival, or of the operation of any flight.
(B) Definitions
(1) "Schedule irregularities" means the following:
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(e) In the case of schedule irregularities, the carrier will give priority for assistance to any person with a disability and unaccompanied minors.
(f) The carrier whose flight experiences a schedule irregularity will make onward arrangements for the passenger to the next point of stopover shown on the ticket.
Member(s)
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