Decision No. 130-C-A-2021

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding their missed outbound flight from Toronto, Ontario, to Calgary, Alberta, on October 7, 2019, and the alleged misinformation provided regarding the location of their baggage, which resulted in additional expenses.

[2] The applicants seek compensation in the amount of CAD 2,652.50 for their rebooked tickets, and compensation for losing a day in Las Vegas, USA.

[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/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518 (Tariff), as required by subsection 110(4) of the ATR?

[4] For the reasons set out below, the Agency finds that the respondent properly applied the terms and conditions set out in Rules 75(C)(4) and 105(A) of its Tariff. Therefore, the Agency dismisses the application.

BACKGROUND

[5] The applicants purchased round-trip tickets to travel from Toronto to Las Vegas, via Calgary, on October 7, 2019, and returning on a direct flight on October 10, 2019.

[6] When the applicants failed to board their flight from Toronto to Calgary, the respondent did not cancel their return flights. The applicants purchased new outbound tickets with Air Canada for CAD 2,652.50. The applicants stopped in Calgary to pick up their baggage, and discovered that it was already in Las Vegas, due to an error in the respondent’s post‑departure procedures.

[7] The applicants argue that they missed their outbound flight because the respondent did not make a last call announcement or page them when they were not present for boarding, although they were checked in for the flight. Furthermore, the applicants claim additional expenses due to the respondent providing them with incorrect information about where their baggage was, which resulted in them losing a day in Las Vegas as they went to Calgary to pick up their baggage.

PRELIMINARY MATTERS

Loss of time and enjoyment

[8] The applicants seek compensation for one day of lost time in Las Vegas as they travelled to Calgary to retrieve their baggage. The Agency has previously ruled, in Decision No. 185-C-A-2003 (Yehia v Air Canada), and more recently in Decision No. 8‑C-A-2020 (Waserman v Air Canada), that it may only award compensation for expenses incurred by a passenger if those expenses arose as a direct result of the carrier’s failure to respect its tariff.

[9] Furthermore, the Agency does not have the jurisdiction to order compensation for loss of enjoyment. The Agency acknowledges the applicants’ unhappiness at missing a day in Las Vegas, but it is limited by law in terms of what it can award.

[10] Accordingly, the Agency will not consider this issue.

THE LAW AND RELEVANT TARIFF PROVISIONS

[11] 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.

[12] 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 service it offers and that were set out in the tariff.

[13] The relevant provisions of the Tariff are set out in the Appendix.

POSITIONS OF THE PARTIES

The applicants

[14] The applicants claim that they checked in with their baggage on the morning of their flight but that when they arrived at the gate, the flight had already departed. They claim that they were not late for their flight.

[15] According to the applicants, they were told that passengers are no longer paged for security reasons and then heard staff paging other passengers for a flight to Vancouver, British Columbia.

[16] The applicants submit that they were told that their baggage would be offloaded in Calgary and that for security reasons their baggage could not be sent out of the country without them. They then purchased tickets on Air Canada to travel to Las Vegas with a stop in Calgary so that they could retrieve their baggage. Once they arrived in Calgary, they were told that the baggage had already been sent to Las Vegas due to a mistake WestJet made. As a result, the applicants claim that they lost a day in Las Vegas.

The respondent

MISSED FLIGHT

[17] The respondent claims that the applicants checked in at the airport at 5:10 a.m. and that Mr. Sharma checked one piece of baggage. Boarding was scheduled to begin at 6:05 a.m., as per the boarding pass, allowing the applicants 55 minutes to go through security and arrive at their gate. Moreover, the applicants had 1 hour and 25 minutes to meet the boarding time cut-off of 10 minutes prior to scheduled departure at 6:45 a.m.

[18] The respondent confirms that boarding was on schedule and the applicants did not present themselves at the gate; therefore, they missed their flight. The respondent states that of the 124 passengers booked on the flight to Calgary, 122 passengers successfully presented themselves at the gate on time to board and travel to Calgary.

[19] According to the respondent, the applicants were not refused transportation, but instead voluntarily cancelled their tickets by failing to arrive on time for boarding. Furthermore, the respondent states that it has no record that the applicants attempted to contact the respondent within two hours of departure. The Tariff defines “no show” to mean that a passenger has missed their flight and either contacted the carrier more than two hours after the departure of their scheduled flight, or failed to contact the carrier at all. No‑show segments are non-creditable and non-refundable.

[20] The respondent claims that the applicants were offloaded from the flight post-departure and marked as late show indicating that they checked in, but failed to board the flight. Normally, when a passenger fails to take their outbound flight, their return flight would be forfeited. However, the respondent made an exception and allowed the passengers to retain their return tickets to lessen the financial burden. The respondent states that the applicants travelled on their return flight as scheduled.

[21] The respondent argues that since the applicants had purchased basic fare tickets and failed to present themselves at the boarding gate, they would incur a loss of funds, as per the fare rules. Furthermore, as per Rule 15 of its Tariff, the respondent states that outside the 24-hour period after booking, no changes or cancellations are permissible for basic fares.

[22] As for the applicants’ claiming that they missed their flight to Calgary due to the respondent failing to make boarding announcements, the respondent argues that had the applicants been close to the boarding lounge, as per the respondent’s procedures, they would have heard one pre-boarding message, seven boarding messages and at least one missing passenger announcement with their names mentioned. The respondent adds that final boarding calls and missing passenger announcements are broadcast throughout the entire terminal.

[23] The respondent argues that the onus is on the passenger to ensure that they are present at the gate in time for boarding and that the boarding time is clearly displayed on the boarding pass. Furthermore, it refers to Rule 75(B)(5) that states that it is recommended

that the passenger refer to the airport terminal displays to ascertain the flight’s status and departure times, and that this flight left on time as scheduled and as displayed on the applicant’s boarding passes.

BAGGAGE

[24] The respondent submits that since the applicants’ flight from Toronto to Calgary was a domestic flight, there was no reason to delay the flight to remove their baggage, when they failed to present themselves prior to departure.

[25] The respondent states that the applicants are claiming that the respondent purposefully misled them about their baggage and forced them to travel to Calgary, which led to additional expenses. The respondent admits that an error was made during post‑departure procedures, where the next leg of the trip, from Calgary to Las Vegas, was not automatically dropped. The applicants were still on the manifest for their connecting flight, even though the agent could see that the applicants did not board their flight from Toronto to Calgary. This caused confusion and, as a result, it was decided not to offload the baggage in Calgary. Instead, the baggage continued on the connecting flight to Las Vegas, where it was held for the passengers to pick up.

[26] The respondent admits that when the applicants presented themselves at the Calgary airport, they were told their baggage was in Las Vegas. The applicants retrieved their baggage upon arrival in Las Vegas. The respondent claims that at no point did the respondent tell the applicants that they must proceed to Calgary to retrieve their baggage. Moreover, the respondent claims that had the applicants spoken to an agent they would have been told that the standard procedures were to stop the baggage in Calgary and return it to Toronto. The respondent claims that it is not liable for any costs that the applicants incurred as a result of trying to retrieve their baggage in Calgary.

[27] The respondent claims that it fulfilled its Tariff obligations, and that it was through no fault of its own that the applicants missed their flight. As the tickets were basic fare, this resulted in the forfeiture of the outbound flights and any fees associated with those. Moreover, the respondent states that the events took place in October 2019 and that the Air Passenger Protection Regulations, SOR/2019-150 (APPR) do not apply to this case. It claims that the case should be dismissed.

ANALYSIS AND DETERMINATIONS

[28] The onus is on the applicants to establish, on a balance of probabilities, that the carrier failed to properly apply the terms and conditions of carriage set out in its tariff.

Missed Flight

[29] Rule 105(A) of the Tariff defines a voluntary cancellation, under the refunds provision, as when the passenger decides not to use the ticket and cancels the reservation, and it states that the passenger may not be entitled to a refund, depending on the fare. The applicants had a basic fare ticket and, based on the evidence provided and Rules 15(C)(2)(c)(iii) and 15(C)(2)(d)(iii) of the Tariff, basic fare tickets cannot be changed and are non-refundable. The unused ticket amount is not available for future travel credit.

[30] Rule 75(C)(4) of the Tariff states that the carrier will not be liable for loss or expenses due to the guest’s failure to comply with the reservation provisions. Any amounts paid for the ticket, including fare, fee, charge, surcharge, and tax paid by passengers are forfeited in the event that the passenger fails to show up for a flight.

[31] The applicants admit to arriving at the boarding gate after the flight departed, which resulted in them voluntarily cancelling their tickets. The respondent, therefore, properly applied Rules 75(C)(4) and 105(A) of the Tariff.

[32] Rule 15(H)(2)(a) of the Tariff states that when a ticket is not valid as a result of the passenger’s non-compliance with any term or condition of sale, the carrier has the right to cancel any remainder portion of the itinerary or ticket. In this case, the respondent chose not to cancel the remainder of the applicants’ itinerary, as it could have, lessening the financial burden for the applicants.

Baggage

[33] The respondent denies telling the applicants to travel to Calgary to retrieve their baggage. However, based on the evidence provided by the respondent, there was an error with its post-departure procedures that caused confusion regarding the baggage and, as a result, the baggage was mistakenly sent to Las Vegas.

[34] According to the respondent, the baggage should not have travelled internationally without the applicants. Carriers are prohibited from knowingly transporting baggage without an accompanying passenger across international borders, as noted in Decision No. 40-C-A-2021 (Cruz Hernandez v Air Canada and Lufthansa) and Decision No. 68-C-A-2021 (Steblin v Air Canada).

[35] Notwithstanding the above, it appears that the respondent did not contravene the terms and conditions set out in its Tariff. Accordingly, the respondent is not required to compensate the applicants for any expenses incurred as a result of the events at issue.

CONCLUSION

[36] In light of the above, the Agency finds that the respondent properly applied the terms and conditions set out in Rules 75(C)(4) and 105(A) of its Tariff. Therefore, the Agency dismisses the application.

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APPENDIX TO DECISION NO. 130-C-A-2021

International/Transborder Passenger Fares and Rules Tariff No. WS-1 Containing Local and Joint Rules, Fares and Charges on Behalf of WestJet Airlines, Ltd Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points in Area 1/2/3 and Between Points in the US and Points in Canada, NTA(A) No. 518

RULE  15  RATES AND CHARGES-INTERNATIONAL SERVICE

…

(C) PASSENGER INITIATED FLIGHT MODIFICATIONS

….

(2) Changes

….

(c) A passenger changing a reservation

….

(iii) Changes are not allowed under a Basic fare.…

Changes within 24 hours of booking (excluding flts departing within 24 hours) … are not permitted…
Change for tvl departing within 60 days and same-day flight changes at check-in … Non-Refundable, no changes are permitted, any unused ticket amount is not available for future tvl credit. ….

(d) A Passenger changing a reservation for flights to and from Europe including the UK

….

(iii) Changes are not allowed under an Basic Fare.

(H) HIDDEN CITY/POINT BEYOND TICKETING

… 

(2) Where a ticket is not valid as the result of the passenger’s non compliance with any term or condition of sale, with this rule or applicable fare rule, or where one or more tickets have been issued in furtherance of a prohibited practice, the carrier has the right in its sole discretion to:

(a) Cancel any remaining portion of the passenger’s itinerary or ticket;….

RULE  75  SCHEDULE IRREGULARITIES

(C) PRIOR TO PURCHASE

Reservations:

Guest’s responsibility: …

(4)  The carrier will not be liable for loss of expense due to the Guest’s failure to comply with this provision. Any amounts paid for the ticket, including fare, fee, charge, surcharge, and tax paid by a Guest or Guests are forfeited in the event the Guest(s) fail(s) to show up for a flight. ….

RULE  105  REFUNDS

(A)  VOLUNTARY CANCELLATIONS

If a passenger decides not to use the ticket and cancels the reservation, the passenger may not be entitled to a refund, depending on any refund condition attached to the particular fare.