Decision No. 127-C-A-2023

[1] Farrel Huculak purchased a round-trip ticket to travel with WestJet from Halifax, Nova Scotia, to Montréal, Quebec, departing on January 23, 2020, and returning on January 26, 2020. Mr. Huculak’s outbound flight was cancelled and he was rebooked to travel to Montréal via Toronto, Ontario. As a result, Mr. Huculak arrived in Montréal 3 hours and 5 minutes later than originally scheduled.

[2] Mr. Huculak seeks compensation for inconvenience for the delay that he experienced under the Air Passenger Protection Regulations (APPR).

[3] In this decision, the role of the Canadian Transportation Agency (Agency) is to decide whether WestJet properly applied the terms and conditions applicable to the ticket purchased by Mr. Huculak, as set out in WestJet’s Tariff. The Tariff is a legal document that contains the terms, conditions and other rules that apply to the passenger's ticket.

[4] WestJet filed an answer to the application, but did not provide its applicable domestic tariff. The Canada Transportation Act (CTA) provides that the obligations of the APPR are deemed to form part of the terms and conditions set out in a carrier’s tariff. Therefore, the applicable tariff for this itinerary included at minimum WestJet’s obligations under the APPR. The Agency will assess the carrier’s obligations to Mr. Huculak as set out in the APPR.

[5] If the Agency finds that WestJet failed to properly apply its Tariff by failing to meet its obligations under the APPR, it may direct WestJet to take corrective measures that it considers appropriate or to pay compensation for any expense incurred by a person adversely affected by WestJet’s failure.

[6] Mr. Huculak sought compensation for inconvenience, but WestJet denied his claim on the basis that the flight was cancelled due to unscheduled maintenance. Accordingly, WestJet argues that the cancellation was within its control but required for safety purposes.

[7] WestJet submits that a mechanical malfunction was identified during a safety check that was completed prior to departure. In support of its position, WestJet provided the maintenance records that demonstrate that on January 23, 2020, maintenance crews discovered that the overhead emergency lighting in exit row 2CD was not illuminating. WestJet also provided a copy of shift notes, which demonstrates that such malfunction was identified at 4:19 am and that parts would need to be ordered and replaced.

[8] WestJet submits that the aircraft could not operate safely without illumination of the emergency exit signage at the exit seats, and that, therefore, the flight cancellation was required for safety purposes and mandated by the Canadian Aviation Regulations. In support of its position, WestJet detailed the safety requirements around emergency illuminating systems in case of an emergency and it referenced specific provisions of the Canadian Aviation Regulations.

[9] Mr. Huculak disputes WestJet’s explanation that the cancellation was due to unscheduled maintenance, because he claims that while he was waiting at the gate, an announcement was made that another flight for St. John’s, Newfoundland and Labrador, was departing and that this flight for St. John’s used the aircraft that was originally scheduled to operate his flight. Mr. Huculak also claims that on his flight to Montréal via Toronto, he heard the pilots state that the aircraft scheduled to operate his original flight was rerouted to St. John’s.

[10] Under the APPR, passengers are entitled to compensation for inconvenience if they experience a flight delay or cancellation within the carrier’s control, but not if the delay or cancellation is within the carrier’s control but required for safety purposes.

[11] The APPR defines “required for safety purposes” as required by law to reduce risk to passenger safety, which includes situations of mechanical malfunctions but does not include mechanical malfunctions identified by, or disruptions caused by, scheduled maintenance. In Decision 122-C-A-2021 (APPR Interpretive Decision), the Agency stated that pre- and post-flight checks are not activities of scheduled maintenance as the aircraft is not pulled from service for these checks and that these checks are meant to identify any last-minute, unforeseeable issues that could not have been prevented by regular scheduled maintenance. The Agency further stated that flight disruptions that are due to an issue identified during pre-flight check affecting the safe operation of the aircraft are generally considered within the carrier’s control but required for safety purposes.

[12] While the parties provided contradictory versions of events, the Agency finds that, based on the evidence, it is more likely than not that the aircraft scheduled to operate the applicant’s flight was not used to operate another flight on January 23, 2020, as it was taken out of service that morning.

[13] Based on the above, the Agency finds that a mechanical malfunction affecting the safe operation of the aircraft was identified during a pre-flight check on January 23, 2020. Accordingly, the Agency finds that the cancellation of Mr. Huculak’s flight was within WestJet’s control but required for safety purposes; and that, therefore, he is not entitled to compensation for inconvenience under the APPR.

[14] The Agency dismisses the application.