Decision No. 128-C-A-2021
APPLICATION by Darrin Murphy and Michele Murphy (applicants) against Air Canada (respondent), pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding a schedule irregularity.
SUMMARY
[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding a schedule irregularity affecting their travel from Halifax, Nova Scotia, to Dublin, Ireland, via Toronto, Ontario, on October 1, 2019.
[2] The applicants seek denied boarding compensation under the Air Passenger Protection Regulations, SOR/2019-15 (APPR) in the amount of CAD 2,400 per passenger, for a total of CAD 4,800.
[3] In this decision, the Agency will address the following issue:
Did the respondent properly apply the terms and conditions set out in its International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and 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, NTA(A) No. 458 (Tariff), as required by subsection 110(4) of the ATR?
[4] For the reasons set out below, the Agency finds that the applicants are not entitled to denied boarding compensation and that the respondent properly applied Rule 80(C)(4) of its Tariff, as required by subsection 110(4) of the ATR. The Agency therefore dismisses the application.
BACKGROUND
[5] The applicants’ flight from Halifax to Toronto, Flight No. AC1533, was delayed. The respondent determined that the applicants would not meet the boarding time requirement for their connecting flight and automatically reprotected them on a flight departing the next day. The respondent provided the applicants with accommodation, transportation to and from the hotel, and meal vouchers.
THE LAW AND RELEVANT TARIFF PROVISIONS
[6] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.
[7] If the Agency finds that a carrier has failed to properly apply its tariff, subsection 113.1(1) of the ATR empowers the Agency to direct the 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 services it offers and that were set out in the tariff.
[8] Subsection 86.11(4) of the CTA provides that the carrier’s obligations under the APPR are deemed to form part of the terms and conditions set out in the carrier’s tariffs in so far as the carrier’s tariffs do not provide more advantageous terms and conditions of carriage than those obligations.
[9] Subsection 1(3) of the APPR provides as follows:
For the purpose of these Regulations, there is a denial of boarding when a passenger is not permitted to occupy a seat on board a flight because the number of seats that may be occupied on the flight is less than the number of passengers who have checked in by the required time, hold a confirmed reservation and valid travel documentation and are present at the boarding gate at the required boarding time.
[10] The relevant provisions of the Tariff are set out in the Appendix.
POSITIONS OF THE PARTIES
The applicants
[11] The applicants claim that, despite their flight from Halifax to Toronto being delayed, they made it to the gate in time to board their flight from Toronto to Dublin. The applicants claim to have waited in line for over one hour at the boarding gate, yet were denied boarding and were told that their seats were given away. They claim that the flight departed 30 minutes after they were denied boarding.
[12] The applicants claim that two passengers from Flight No. AC1533 were able to board Flight No. AC0842, but that seven other passengers were in the same situation as them.
[13] The applicants state that the respondent reprotected them on a flight departing the following evening and provided them with hotel accommodation, transportation to and from the hotel, and meal vouchers. They point out that the vouchers were marked with “delay controllable”.
The respondent
[14] The respondent states that Flight No. AC1533 was scheduled to depart Halifax at 8:00 p.m. and arrive in Toronto at 9:22 p.m. yet was delayed by 1 hour and 41 minutes. This was caused in part by a last-minute mechanical malfunction and weather, which delayed the inbound flight operating the aircraft used for Flight No. AC1533.
[15] The respondent remarks that due to the delay of the inbound flight and a further weather lightning advisory, the applicants’ flight departed Halifax at 9:41 p.m. and arrived in Toronto at 10:59 p.m., only 6 minutes prior to the scheduled departure of the applicants’ connecting flight, Flight No. AC0842, at 11:05 p.m.
[16] The respondent claims that it proactively reprotected the applicants while they were en route to Toronto because it would have been impossible for the applicants to meet the boarding cut-off time of 10:50 p.m., as per Rule 70 of the Tariff. It argues that it proactively reprotects passengers rather than wait for passengers to miss their connecting flight in order to mitigate the length of the delay experienced as they may have fewer alternative options available.
[17] The respondent claims that Flight No. AC0842 from Toronto to Dublin was also delayed by approximately 50 minutes as it had to wait for the First Officer’s delayed inbound flight. The respondent adds that Flight No. AC0842 departed with four empty seats.
[18] The respondent states that the applicants travelled on the rescheduled flight to Dublin without issue and were delayed a total of 23 hours and 11 minutes.
[19] The respondent states that as per Rule 90 of its Tariff, denied boarding occurs when the carrier intentionally oversells the number of seats on the aircraft or there are fewer seats than originally anticipated. It argues that this is not a case of denied boarding as the aircraft left with empty seats and the applicants did not hold confirmed reservations after their itinerary was revised.
[20] The respondent references Rule 80 of its Tariff which states that flight times are not guaranteed, and schedules are subject to change without notice. It asserts that, in accordance with Rule 80(B)(4) of the Tariff and section 18 of the APPR, its sole obligation with respect to the delay of Flight No. AC1533 was to make alternative travel arrangements within 48 hours of the end of the event that caused the delay. The respondent argues that it complied with this obligation as the passengers were reprotected within 24 hours. Moreover, it claims that it exceeded its obligations by providing the applicants with hotel accommodation, transportation to and from the hotel, and meal vouchers. It claims that it is only required to do so, pursuant to the APPR, in situations where the delay is within the carrier’s control or required for safety.
[21] The respondent admits that the vouchers were marked with “controllable”, but states that this was caused by a system limitation, which has since been corrected, and was not intended to provide confirmation to the passengers that the delay or rebooking was controllable for purposes of compensation under the APPR.
[22] The respondent claims that the other five passengers connecting from Flight No. AC1533 to Flight No. AC0842 were also removed from Flight No. AC0842 and rebooked. It provided evidence which demonstrated that the seven passengers did not board Flight No. AC0842.
[23] The respondent asserts that it is impossible that the applicants took 20 minutes to get to the boarding gate, waited an hour, and then 30 minutes later the flight departed as claimed. It submits that there were 41 minutes between the time Flight No. AC1533 arrived at the gate at 11:14 p.m. and the departure of Flight No. AC0842 at 11:55 p.m.
[24] Finally, the respondent claims that the applicants would not have been able to travel on Flight No. AC0842 as their baggage would not have made it in time. The respondent adds that as per the Commission Regulations (EU) 2015/1998, 5.3.1, carriers are prohibited from knowingly transporting baggage without its passenger across international borders and therefore could not allow the passengers to board the connecting flight and arrange to have their baggage shipped on a later flight.
ANALYSIS AND DETERMINATIONS
[25] The onus is on the applicants to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.
[26] In accordance with subsection 86.11(4) of the CTA, the denied boarding provisions of the APPR are deemed to form part of the respondent’s Tariff because the terms and conditions related to denied boarding set out in the Tariff are not more advantageous. For example, paragraph 12(4)(d) and subsection 20(1) of the APPR, and Rule 90(G)(1) of the Tariff provide that a passenger is entitled to compensation in the amount set out in the APPR if the denial of boarding was within the control of the carrier.
[27] Subsection 1(3) of the APPR states that there is a denial of boarding when a passenger is not permitted to occupy a seat on board a flight because the number of seats on the flight is less than the number of passengers who have checked in for the flight, the passenger holds a confirmed reservation and valid travel documentation, and is present at the boarding gate at the required boarding time. Similarly, Rule 90(A) of the Tariff defines denied boarding as a situation where the respondent is unable to provide previously confirmed space because the number of passengers who hold confirmed reservations and tickets exceeds the number of seats available. This occurs when the respondent “oversells” a flight.
[28] While the applicants claim that they were denied boarding on Flight No. AC0842 on October 1, 2019, and are entitled to compensation under the APPR, the Agency finds that there was no denial of boarding within the meaning of subsection 1(3) of the APPR and Rule 90 of the respondent’s Tariff. The evidence filed by the respondent establishes that Flight No. AC0842 was not overbooked and had four unoccupied seats. Furthermore, as the applicants were reprotected on another itinerary as a result of the delay of Flight No. AC1533, the applicants no longer held confirmed reservations on Flight No. AC0842 at the time they presented themselves at the boarding gate.
[29] The applicants describe an undoubtedly frustrating delay in their travel; however, the Agency finds that their inability to board Flight No. AC0842 was not a case of denied boarding as it is defined in the APPR and the Tariff and, accordingly, they are not entitled to denied boarding compensation. Rather, the applicants were affected by a schedule irregularity as a result of the delay of Flight No. AC1533.
[30] Rule 80(C)(4) of the Tariff sets out the carrier’s obligations in the event of a schedule irregularity; in the applicants’ case, the obligation was to reprotect the applicants on another flight within a reasonable time frame.
[31] The respondent determined that the applicants would be unable to meet the boarding cut-off time set out in Rule 70(B) of the Tariff as Flight No. AC1533 was scheduled to land in Toronto at 10:59 p.m., 6 minutes prior to the originally scheduled departure of the connecting flight.
[32] The Agency finds that it was reasonable for the respondent to automatically reprotect the applicants in these circumstances and notes that this ensured that the applicants and their checked baggage would make it on the next flight. As was the case in Decision No. 40-C-A-2021 (Cruz Hernandez v Air Canada and Lufthansa), Decision No. 68-C-A-2021 (Steblin v Air Canada), and as explained by the respondent in this case, a carrier is bound by security measures that require passengers to travel on the same aircraft as their baggage.
CONCLUSION
[33] In light of the above, the Agency finds that the applicants are not entitled to denied boarding compensation and that the respondent properly applied Rule 80(C)(4) of its Tariff, as required by subsection 110(4) of the ATR, when it proactively reprotected the applicants. Moreover, the Agency notes that the respondent provided the applicants with hotel accommodation, transportation to and from the hotel, and meal vouchers. The Agency, therefore, dismisses the application.
APPENDIX TO DECISION NO. 128-C-A-2021
International Passenger Rules and Fares Tariff No. AC-2 Containing Local and Joint Rules, Regulations, Fares and 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, NTA(A) No. 458
70 CHECK-IN AND BOARDING TIME LIMITS
….
(B) Boarding
The passenger must be available for boarding at the boarding gate at least 15 minutes … prior to schedule departure time of the flight on which he/she holds a reservation.
80 SCHEDULE IRREGULARITIES
….
(C) SCHEDULE IRREGULARITY
….
(4) In the event of a schedule irregularity, Carrier will either:
….
(a) carry the passenger on another of its passenger aircrafts or class of service on which space is available without additional charge regardless of the class of service; or, at carrier’s option;
….
90 DENIED BOARDING
(A) DEFINITION OF DENIED BOARDING
A passenger is denied boarding when the number of seats that may be occupied on a flight is less than the number of passengers who hold confirmed reservations, have valid travel documentation, and have checked in by the required time and presented themselves at the boarding gate by the required time as per Rule 70 ‑ CHECK-IN AND BOARDING TIME LIMITS.
….
(G) COMPENSATION
Eligibility
(1) A passenger who has been denied boarding because of events within
Air Canada’s control will be compensated, in accordance with APPR.
(2) A passenger is not eligible for denied boarding compensation if:
….
(d) if the flight on which the passenger hold a confirmed reservation is cancelled or delayed.
Member(s)
- Date modified: