Decision No. 121-C-A-2022
Application by Gareth Bennett against WestJet, pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), concerning flight cancellations.
[1] Gareth Bennett purchased round-trip tickets with WestJet to travel from Vancouver, British Columbia, to Belize City, Belize, via Toronto, Ontario. The return portion of his itinerary included a flight from Belize to Toronto on December 14, 2019, with a connecting flight to Vancouver the following morning that was scheduled to arrive at 9:31 am on December 15, 2019.
[2] Shortly before departing Belize, Mr. Bennett was informed that his flight from Toronto to Vancouver had been cancelled (first flight cancellation). WestJet offered to rebook him on a flight leaving Toronto later that day and arriving in Vancouver at 12:41 am on December 15, 2019; however, Mr. Bennett declined this option and requested to be rebooked on a flight the following day. He was then offered, and accepted, to be rebooked to travel from Toronto to Vancouver, via Edmonton, Alberta, departing from Toronto on December 15, 2019 at 7 am and arriving in Vancouver at 10:59 am.
[3] However, on December 15, 2019, Mr. Bennett’s flight to Edmonton was cancelled (econd flight cancellation), and he was rebooked to travel that same day from Toronto to Vancouver via Calgary, Alberta, departing from Toronto at 11:00 am and arriving in Vancouver at 4:05 pm. Mr. Bennett travelled on this itinerary and arrived in Vancouver at 4:14 pm on December 15, 2019.
[4] Mr. Bennett argues that he should be entitled to compensation under the Air Passenger Protection RegulationsNote 1(APPR). Additionally, he seeks compensation for three meals and his overnight hotel stay in Toronto. He also seeks compensation in the amount of CAD 15,000 for emotional damages. The Agency does not have authority to provide damages for emotional distress; therefore, it will not consider this aspect of the application.
[5] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether WestJet properly applied its TariffNote 2 to the ticket that Mr. Bennett purchased. If the Agency finds that WestJet failed to properly apply its Tariff, it can direct the carrier to take the corrective measures that the Agency considers appropriate or to pay compensation for any expenses incurred by a person adversely affected by the carrier’s failure. The relevant provisions of the ATR, the APPR and the Tariff are set out in the Appendix.
First flight cancellation
[6] WestJet claims that the cancellation of the flight from Toronto to Vancouver was due to unscheduled maintenance, and was therefore within its control but required for safety. Rule 75(d)(2)(b) of the Tariff provides that in the event of a schedule irregularity within the carrier’s control, the carrier will rebook the passenger on an alternate flight within a reasonable time. Given that WestJet offered Mr. Bennett a revised itinerary that was scheduled to arrive in Vancouver earlier than his original itinerary, and then provided him with a flight departing the next day at his request, the Agency finds that WestJet properly applied this Rule.
[7] Mr. Bennett argues that he is entitled to compensation for the cost of his meals and hotel accommodations in Toronto on December 14, 2019. His original scheduled time of departure from Toronto was 7 am, arriving in Vancouver at 9:31 am. The revised itinerary that he accepted was scheduled to depart Toronto at 7 am and arrive in Vancouver at 10:59 am. Mr. Bennett’s original itinerary included an overnight stay in Toronto, as did the revised itinerary that he accepted.
[8] According to Rule 75(d)(2)(c)(i) of the Tariff, the carrier will provide passengers with a meal voucher if they experience a schedule irregularity lasting longer than three hours. Further, Rule 75(d)(2)(c)(ii) states that if the schedule irregularity lasts eight hours or overnight, the carrier will provide hotel accommodation. As the first flight cancellation did not result in a delay to Mr. Bennett’s scheduled departure time from Toronto, and as he would have been delayed by less than three hours in reaching Vancouver, the Agency finds that WestJet properly applied these rules, and that Mr. Bennett is not entitled to compensation for the cost of his meals and hotel accommodations in Toronto.
Second flight cancellation
[9] On December 15, 2019, the provisions of the APPR regarding standards of treatment and compensation for inconvenience came into force. Given that the second flight cancellation occurred on December 15, 2019, these provisions of the APPR are applicable to Mr. Bennett’s revised itinerary. According to subsection 86.11(4) of the Canada Transportation ActNote 3 (CTA), the APPR are deemed to form part of WestJet’s terms and conditions of carriage given that its Tariff provides less advantageous terms and conditions than those provisions.
[10] WestJet submits Mr. Bennet’s flight to Edmonton was cancelled due to crew duty hours, and explains that it was a cancellation within its control but required for safety purposes. In support of its position, WestJet provides flight information indicating that the cancellation was due to “Pilot duty day, Pilot shortage in non-crew base and downline flights, Pilot crew rest, etc. […]”
[11] The Agency has recently recognized that while the onus is on the applicant to establish, on a balance of probabilities, that the carrier failed to properly apply the rules applicable to their ticket, when a carrier claims that a disruption was within its control but required for safety purposes, or outside its control, it must establish this claim [Decision 89-C-A-2022 (Lareau v WestJet) and Decision 107-C-A-2022 (Crawford v Air Canada]. In other words, the carrier has the responsibility to provide evidence to support its categorization of the disruption.
[12] Further, in Decision 122-C-A-2021 (APPR Interpretive Decision), the Agency found that when categorizing of a flight disruption caused by a crew shortage, the circumstances surrounding the crew shortage must be considered, including, but not limited to, factors such as the categorization of the events that caused the crew shortage, and whether the carrier has prepared and implemented reasonable contingency plans.
[13] Given that carriers generally have control over staffing issues, the threshold for establishing that a crew shortage is not within the carrier’s control is high. Carriers must demonstrate that they could not have reasonably prevented the disruption despite proper planning, and they must provide evidence showing that the crew shortage was not the result of their own actions or inaction (Lareau v WestJet). In doing so, they are expected to provide evidence relating to the specific circumstances of the disruption, as these circumstances must be considered to determine a carrier’s obligations under the APPR (Crawford v Air Canada).
[14] In this case, no evidence was submitted by WestJet regarding the contingency plans it had in place to ensure that replacement crew was available in the event of a crew shortage. Further, the arguments and evidence provided by WestJet neither explain why the flight crew originally scheduled to operate the flight exceeded their hours, nor do they establish what efforts were taken to replace the crew scheduled to operate the flight.
[15] In light of the above, the Agency finds that WestJet has not established that the cancellation resulting from the crew shortage was unavoidable despite proper planning, nor that the cancellation was not the result of its own actions or inaction. The Agency therefore finds that the cancellation of Mr. Bennett’s flight from Toronto to Edmonton was within WestJet’s control.
[16] Pursuant to paragraphs 12(3)(b) and 14(1)(a) of the APPR, if a passenger is informed 14 days or less of a cancellation within the carrier’s control, and has waited two hours after the departure time that is indicated on their original ticket, the carrier must provide the passenger with food or drink in reasonable quantities, taking into account the length of the wait, the time of day and the location of the passenger. As WestJet provided Mr. Bennett with two meal vouchers on December 15, 2019, the Agency finds that it met this obligation.
[17] Pursuant to paragraphs 12(3)(d) and 19(1) of the APPR, if a passenger is informed 14 days or less of a cancellation within the carrier’s control, and their arrival is delayed by three hours or more, the carrier must provide compensation for inconvenience. In this case, the second flight cancellation resulted in Mr. Bennett arriving in Vancouver at 4:14 pm instead of 10:59 am, representing an overall delay of 5 hours and 15 minutes. The Agency therefore finds that he is entitled to compensation for inconvenience in the amount of CAD 400, in accordance subparagraph 19(1)(a)(i) of the APPR.
Order
[18] Pursuant to subsection 113.1(1) of the ATR, the Agency orders WestJet to compensate Mr. Bennett in the amount of CAD 400 as soon as possible and no later than November 22, 2022.
Appendix to Decision 121-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.
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.
Air Passenger Protection Regulations, SOR/2019-150
Cancellation
12(3) In the case of a cancellation, the carrier must
…
(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;
…
(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
…
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,
(i) $400, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by three hours or
more, but less than six hours,
(ii) $700, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by six hours or
more, but less than nine hours, or
(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
(b) in the case of a small carrier,
(i) $125, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by three hours or
more, but less than six hours,
(ii) $250, if the arrival of the passenger’s flight at the destination that is indicated on the original ticket is delayed by six hours or
more, but less than nine hours, or
(iii) $500, 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.
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 75 Schedule Irregularities
…
(d) Prior to travel
…
(2) Irregularity operations (within 14 days):
carrier controlled:
…
(b) In the event of a schedule irregularity, within the carrier's control, the carrier will present the passenger with the following options.
(i) Carry the passenger to the destination named on the ticket, or applicable portion thereof, within a reasonable amount of time, on another of its passenger aircraft or in a different class of service on which space is available, without additional charge, regardless of the class of service in which the passenger was booked; or
(ii) Reroute the passenger to the destination named on the ticket, or applicable portion thereof, on its own transportation services within a reasonable amount of time. If the fare for the revised routing of class of service is higher than the fare paid by the passenger, the carrier will require no additional payment from the passenger. If the fare for the revised routing is in a lower class of service, a refund will be made for the difference in fare. The refund will be made to the purchaser of the ticket. the form of refund will be the same as the form of payment used for the ticket. The refund will be based on the total value of the ticket; or
(iii) Reroute the passenger to the destination named on the ticket, or applicable portion thereof, on another air carrier's transportation services, including interline or, where possible and necessary, non-interline carriers, within a reasonable amount of time. if the fare for the revised routing or class of service is higher than the fare paid by the passenger, the carrier will require no additional payment from the passenger. If the fare for the revised routing is in a lower class of service, a refund will be made for the difference to the purchaser of the ticket. The form of refund will be the same as the form of payment used for the ticket. The refund will be based on the total value of the ticket; or
(iv) If the passenger chooses to no longer travel as the schedule irregularity results in the loss of purpose of travel or if the carrier is unable to perform the option stated in (i), (ii), or (iii) above within a reasonable amount of time, the carrier will transport the passenger to the point of origin named on the ticket and refund the full amount of the ticket in accordance with rule 105 subject to passenger's agreement, offer a travel voucher for future travel in the same amount
(v) Otherwise, should the alternate transportation proposed by the carrier not meet the passenger's satisfaction, the carrier will offer a refund equal to the fare and charge paid. The refund will be made to the purchaser of the ticket(s). The form of refund will be the same form used as payment of the ticket(s). The refund will be based on the total value of the ticket(s). For complete conditions on refunds see rule 105. Nothing in the above shall limit or reduce the passenger's right, if any, to claim damages, if any, under the applicable convention, or under the law when neither convention applies. In addition to the above, the carrier will always consider the needs of the passenger on a case by case basis and take into account all known circumstances to avoid or mitigate the damages caused by the schedule irregularity within the carrier's control.
(vi) In the case of irregular operations, the carrier will give priority for assistance to any person with a disability and unaccompanied minors.
(vii) The carrier whose flight experiences a schedule irregularity will make onward adjustments for passengers to the next point of stopover shown on the ticket.
(c) Right to care:
(i) For irregular operations lasting longer than 3 hours, the carrier will provide the passenger a meal voucher
(ii) For irregular operations lasting more than 8 hours or overnight, the carrier will provide overnight hotel accommodation and airport transfers for the passenger. The carrier is not obligated to provide overnight accommodation for passengers at the first airport of departure on the ticket.…
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