Decision No. 136-C-A-2021

December 13, 2021

APPLICATION by Samit Sharma, on behalf of themselves, Reshma Sharma and their minor child (applicants) against China Southern Airlines (respondent), pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding a refusal to transport.

Case number: 
21-50078

SUMMARY

[1] The applicants filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding its refusal to transport them on their flight from Guangzhou, China, to Taipei, Taiwan, on December 19, 2019, as their minor child did not have the necessary valid travel documents.

[2] The applicants seek compensation in the amount of CAD 8,698 for their original tickets, compensation in the amount of CAD 7,127 for their new tickets, compensation for their nine-day tour in Taipei in the amount of CAD 4,742, and compensation for the standards of treatment, such as food and water, and mental stress.

[3] In this decision, the Agency will address the following issues:

  • Did the respondent properly apply the terms and conditions set out in its International Passengers Rules and Fares Tariff, NTA (A) No. Cz1 Containing Local Rules, Fares & Changes on Behalf of China Southern Airlines Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3 (Tariff), regarding refusal to transport, as required by subsection 110(4) of the ATR?
  • If the respondent did not properly apply the terms and conditions set out in the Tariff, what remedy, if any, should be ordered?

[4] For the reasons set out below, the Agency finds that the respondent properly applied Rules 25(A)(1)(b), 45(B)(1) and 60(H) of the Tariff when it refused to transport the applicants, as the child did not have the necessary valid travel documents. However, the Agency finds that the respondent did not properly apply Rules 25(A)(3), 45(B)(2), 60(H) and 90(D)(2)(b)(ii) of its Tariff when it did not refund the unused portion of the applicants’ tickets.

[5] The Agency orders the respondent, pursuant to subsection 113.1(1) of the ATR, to:

  1. refund the applicants the difference between the fare paid and the used portion of the tickets, including the cancelled outgoing and return flights, as per Rule 90(D)(2)(b)(ii) of the Tariff;
  2. notify the Agency once the refund has been issued to the applicants; and
  3. file with the Agency a detailed summary, with supporting evidence, of how the refund was calculated. If the Agency is not satisfied with the calculation filed by the respondent, the Agency may order the respondent to pay the compensation the Agency considers appropriate;

all of which must be done as soon as possible and no later than January 27, 2022.

BACKGROUND

[6] The applicants purchased round-trip tickets and a tour package from a travel agent, to travel from Toronto, Ontario, to Taipei, via Guangzhou, on December 18, 2019, returning on December 29, 2019, via Singapore and Guangzhou.

[7] The child’s passport expired on June 18, 2020, and when the applicants arrived in Guangzhou on December 19, 2019, they were refused transportation, as the child’s passport was not valid for at least six months upon entry, as required to travel into Taiwan. The applicants purchased new tickets to New Delhi, India, on December 20, 2019, and return tickets to Toronto, via Newark, New Jersey, on January 2, 2020.

PRELIMINARY MATTERS

Mental stress and loss of enjoyment

[8] The applicants state that being refused transportation and being confined in the transit area in Guangzhou for 14 hours without food and with language barriers caused them stress.

[9] The Agency does not have the jurisdiction to order compensation for pain and suffering or loss of enjoyment in respect of cases which involve alleged contraventions of carriers’ tariff-related obligations.

[10] Further, while the Agency has jurisdiction to order the payment of fixed amounts of compensation for inconvenience in situations described in section 12 of the Air Passenger Protection Regulations, SOR/2019-150 (APPR), refusal to transport is not included in these situations.

[11] The Agency acknowledges the applicants’ unhappiness at missing their tour in Taipei, but the Agency is limited by law in terms of what it can award.

Prepaid expenses

[12] The applicants seek compensation for CAD 4,742 for a nine-day tour in Taipei, including hotel accommodation and car rental, which they purchased prior to their travel.

[13] Paragraph 113.1(1)(b) of the ATR empowers the Agency to order compensation for certain expenses incurred by passengers in matters involving international air services.

[14] In Decision No. 91-C-A-2019 (Neil v WestJet), the Agency found that, in order for compensation to be awarded pursuant to section 113.1 of the ATR, the expense must be incurred as a result of a carrier’s failure to properly apply its tariff. Accordingly, the Agency found that there is no compensation available for prepaid expenses, which was, in that case, a night of hotel accommodations.

[15] The applicants’ purchase of the tour occurred before their travel and the refusal to transport. Therefore, the expense was not a direct consequence of any failure by the respondent to properly apply its Tariff, and the Agency finds that no compensation can be awarded pursuant to paragraph 113.1(1)(b) of the ATR.

Standards of treatment

[16] The applicants seek compensation for standards of treatment. Under section 14 of the APPR, air carriers must provide the passenger with food and drink in reasonable quantities. This obligation, however, only applies in situations of cancellation, delay or denied boarding; it does not apply when there is a refusal to transport, as in the present case.

THE LAW AND RELEVANT TARIFF PROVISIONS

[17] 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.

[18] 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.

[19] Subsection 86.11(4) of the Canada Transportation Act, SC 1996, c 10, 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.

[20] 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.

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

POSITIONS OF THE PARTIES

The applicants

[22] The applicants submit that, when preparing to depart from Toronto, the respondent’s staff checked their documentation and issued boarding passes and checked their baggage to their final destination. They claim that when the respondent’s staff pointed out the minor child’s passport was going to expire within six months, the supervisor said “they would be okay”.

[23] The applicants claim that, upon arrival in Guangzhou on December 19, 2019, they were all refused transportation on their connecting flight as the child’s passport was not valid for at least six months upon entry.

[24] The applicants provided evidence of a signed copy of the declaration and release waiver that they were asked to sign in order to board the connecting flight, but they claim that after going through security, they could not board the flight and were marked as “no‑show”, even though only the minor child’s passport was the issue. The applicants claim that the respondent did not give them the opportunity to address the passport issue in Toronto, when they had “home advantage” and could have postponed their travel or received confirmation from Taiwan that the passport would be a non-issue.

[25] The applicants submit that they were told that they could, at their own cost, go back to Toronto or another country, but that they could not enter Taiwan. They were told that they had to book their new tickets with the respondent as their checked baggage were in its possession and it was the only main air carrier flying out of the terminal. Furthermore, since they were marked as “no-show”, they were informed that their return tickets had also been cancelled.

[26] The applicants purchased new tickets for a flight to New Delhi departing the next day at 7:00 a.m. and return tickets for a flight to Toronto, via Newark, departing on January 2, 2020. They claim that once they had purchased the new tickets, they were finally allowed to leave the airport and went to a hotel for the night.

[27] The applicants admit that it is their responsibility to ensure they have the valid travel documents, but also claim that the respondent was unable to solve the issue related to their minor child’s passport and did not allow them to board their connecting flight. They feel that the air carrier’s staff “led them astray” when staff presented them with boarding passes and checked baggage tags in Toronto for their travel to their final destination; had them sign a declaration and release waiver, but then refused to let them board the flight at the last minute; and entered them all as “no-show”. They believe that the carrier did not give them the benefit of the doubt that even one of them could continue their travel, as it was only their minor child’s passport that was the issue.

[28] They refer to Rule 90 of the respondent’s Tariff, which states that a refund will be made for the unused portion of a passenger’s ticket when they are refused transportation for one of the reasons outlined in Rule 25 of its Tariff.

The respondent

[29] The respondent states that its staff checked the applicants’ travel documents in Toronto and, after some discussion, the staff followed normal procedures and issued the applicants boarding passes and checked their baggage to their final destination, which would allow the passengers to enter the transit zone in Guangzhou. The respondent states that, when the applicants arrived in Guangzhou, its staff could not allow the child to go through the transit zone, as the child’s passport was set to expire within six months.

[30] The respondent claims that the applicants were not able to solve the issue with the child’s passport and that, for this reason, they did not board the connecting flight. The respondent admits that its staff asked the applicants to sign a declaration and release waiver. Furthermore, it claims that it offered the applicants multiple options for them to transit to other airports. The respondent confirms that the applicants left the transit area that night, once they purchased new tickets.

[31] The respondent claims that the applicants were aware that their child’s passport was going to expire within six months and that they still decided to continue their travel. The respondent states that boarding passes and checked baggage tags do not guarantee that passengers can board their connecting flights. The respondent claims that the applicants were refused entry into Taiwan by Taiwan customs and that its staff in Guangzhou were advised they could not allow the child to enter as a tourist, and that is the reason why they were refused transportation at the last minute. The respondent states that the applicants’ tickets were automatically marked as “no-show” by the system when they did not board the connecting flight to Taipei.

[32] The respondent states that Taiwan requires all passengers to hold a passport that is valid for at least six months upon entry. Furthermore, the Guangzhou airport provides 24-hour stay permits for passengers that require more than eight hours to transfer. This permit requires that the passengers hold a confirmed transit boarding pass, and in order to exit the transit area, they must obtain a stay permit to enter China.

[33] The respondent claims that it is the only air carrier that provides international flights from Guangzhou Airport Terminal 2. This limited the applicants’ choices.

[34] The respondent states that the applicants purchased a travel package from a travel agency that included multiple stops and involved different air carriers and, according to the tickets’ fare rules, the tickets were non-refundable and could not be changed.

ANALYSIS AND DETERMINATIONS

[35] 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.

Denied boarding

[36] The applicants claim that they were denied boarding on their connecting flight, at the last minute, after they signed the declaration and release waiver.

[37] Subsection 1(3) of the APPR states that there is a denial of boarding when a passenger is not permitted to occupy a seat aboard a flight because the number of seats on the flight is less than the number of passengers who have validly checked in for the flight, hold a confirmed reservation and valid travel documentation, and are present at the boarding gate at the required boarding time. This occurs when the respondent “oversells” a flight. Moreover, Rule 87(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.

[38] The Agency finds that, in this instance, there was no denial of boarding but rather a refusal of transportation as the child did not have valid travel documents.

Travel requirements

[39] Rule 45(A) of the Tariff states that the passenger shall comply will all the laws and travel requirements of countries to be flown from, into or over, and with all rules, regulations and instructions of the carrier. Furthermore, in Decision No. 91-C-A-2021 (Vokey et al v Air Canada), the Agency found that the carrier is not liable for any aid or information given by its employees to any passenger in connection with obtaining the necessary documents or complying with the laws, whether given orally or in writing, or for any consequences to any passengers resulting in their failure to obtain the necessary documents or to comply with the law.

[40] Under Rule 45(B)(1) of the Tariff, each passenger must present the documents required by law of the countries concerned. It states that the carrier will refuse transportation to any passenger whose documents are incomplete or who has not complied with the applicable requirements. The carrier is not liable to the passenger for loss or expenses due to the passenger’s failure to comply with the provision. Moreover, Rule 45(B)(2) states that the passenger agrees to pay the applicable fare whenever the carrier, on government order, is required to return a passenger at his point of origin or to transport a passenger elsewhere due to the passenger’s inadmissibility into a country, whether it is a country of transit or of destination. The carrier will apply to the payment of the new tickets, any funds paid by the passenger for the unused portion of their original ticket. The fare collected for the transportation to the point of refusal will not be refunded by the carrier. In order to enter Taiwan, a passport valid for at least six months upon entry is required. Both parties agree that the child’s passport was not valid for at least six months.

[41] As per Rule 45(A) of the Tariff, it is the applicants’ responsibility to have the required travel documentation to enter Taiwan, and the respondent is not liable for any information provided by its staff regarding entry requirements or any consequences to the applicants for not meeting the entry requirements. As per Rule 45(B) of the Tariff, the applicants are liable for the costs to travel back to their point of origin, or elsewhere, and the carrier will apply the unused portion of their original tickets to the new tickets.

[42] The Agency finds that the respondent properly applied Rule 45(A) of the Tariff when it refused to transport the applicants, as the child’s passport did not meet Taiwan’s travel requirements and when the respondent told the applicants that they were liable for the costs of the new tickets. However, the Agency finds that the respondent did not properly apply Rule 45(B)(2) when it did not apply the value of the unused portion of their original tickets to the newly purchased tickets.

Refusal to transport

[43] Rule 25 of the Tariff states that the carrier will refuse to carry a passenger when such action is necessary to prevent violation of any applicable laws, regulations or orders of any country to be flown into or over. Furthermore, Rule 25 states that the sole recourse of any person refused carriage shall be the recovery of the refund value of the unused portion of the ticket, as described in Rule 90 of the Tariff.

[44] The Agency finds that the respondent properly applied Rule 25(A)(1)(b) of the Tariff when it refused to transport the child for not having the required valid travel documents to enter Taiwan. However, the Agency finds that the respondent did not properly apply Rule 25(A)(3) of the Tariff when it did not refund the difference between the fare paid and the value of the used portion of their original tickets as per Rule 90 of the Tariff.

Reservations

[45] Rule 60(H) of the Tariff states that if the passenger fails to occupy space reserved for them, the carrier will cancel all other reservations held by such passenger for continuing or return space. It further states that the carrier is not liable for such cancellations, but that it will refund any unused portion of the ticket in accordance with Rule 90 of its Tariff.

[46] The applicants were all marked as a “no-show” when they did not board their connecting flight. However, the Agency notes that it is reasonable that the parents would stay with their minor child when the child was refused transportation.

[47] The Agency finds that the respondent properly applied Rule 60(H) of the Tariff when it cancelled the remainder of their travel as the applicants did not board their flight in Guangzhou. However, the Agency finds that the respondent did not properly apply Rule 60(H) of the Tariff when it did not refund the difference between the fare paid, including their cancelled outgoing and return flights, and the value of the used portion of their original tickets as per Rule 90 of the Tariff.

Refund

[48] Rule 90(D)(2)(b)(ii) states that when a portion of the ticket has been used, the amount of the refund will be the difference between the fare paid and the fare for the ticket used, whichever is higher. The applicants completed a portion of their trip when they took the flight from Toronto to Guangzhou; however, after being refused transportation in Guangzhou and the cancellation of their remaining outgoing and return flights, the applicants were told that they had to purchase new tickets.

[49] The Agency finds that respondent did not properly apply Rule 90(D)(2)(b)(ii) of its Tariff when it did not refund the difference between the fare paid, including the cancelled outgoing and return flights, and the portion of the tickets used.

CONCLUSION

[50] In light of the above, the Agency finds that the respondent properly applied Rules 25(A)(1)(b), 45(B)(1), 60(H) of the Tariff when it refused to transport the applicants as the child did not have the necessary valid travel documents. However, the Agency finds that the respondent did not properly apply Rules 25(A)(3), 45(B)(2), 60(H) and 90(D)(2)(b)(ii) of its Tariff, when it did not refund the unused portion of their tickets.

ORDER

[51] The Agency orders the respondent, pursuant to subsection 113.1(1) of the ATR, to:

  1. refund the applicants the difference between the fare paid and the portion of the tickets used, including the cancelled outgoing and return flights, as per Rule 90(D)(2)(b)(ii) of the Tariff;
  2. notify the Agency once the refund has been issued to the applicants; and
  3. file with the Agency a detailed summary, with supporting evidence, of how the refund was calculated. If the Agency is not satisfied with the calculation filed by the respondent, the Agency may order the respondent to pay the compensation the Agency considers appropriate.

[52] The respondent is to pay the total of this compensation to the applicants and file the detailed summary with the Agency as soon as possible and no later than January 27, 2022.


APPENDIX TO DECISION NO. 136-C-A-2021

International Passengers Rules and Fares Tariff No. Cz1 Containing Local Rules, Fares & Changes on Behalf of China Southern Airlines Applicable to the Transportation of Passengers and Baggage Between Points in Canada/USA and Points in Areas 1/2/3, NTA(A) No. 532

RULE 25 – Refusal to transport

(A) Refusal, cancellation or removal

(1) CZ will refuse to carry, cancel the reserved space of, or remove en route any passenger:


(b) When such action is necessary to prevent violation of any applicable laws, regulations or orders of any state or country to be flown from, into or over…

(3) The sole recourse of any person who is refused carriage or removed en route for any reason specified above, shall be recovery of the refund value of the unused portion of his/her ticket as described in rule 90 (refunds).

RULE 45 – ADMINISTRATIVE FORMALITIES, PASSPORTS, VISAS AND TOURIST CARDS

(A) Compliance with regulations

The passenger shall comply with all laws, regulations, orders, demands or travel requirements of countries to be flown from, into or over, and with all rules, regulations and instructions of the carrier. The carrier shall not be liable for any aid or information given by any agent or employee of the carrier to any passengers in connections with obtaining necessary documents or complying with such laws, regulations, orders, demands, requirements or instructions whether given orally or in writing; or for the consequences to any passenger resulting from his/her failure to obtain such documents or to comply with such laws, regulations, orders, demands, requirements or instructions.

(B) Passports and visas

(1) The passenger must present all exit, entry and other documents required by laws, regulations, orders, demands or requirements of the countries concerned. The carrier will refuse carriage to any passenger whose documents are incomplete or who has not complied with applicable laws, regulations, orders, demands or requirements. Furthermore, the carrier is not liable to the passenger for loss or expense due to the passenger’s failure to comply with this provision.

(2) Subject to the applicable laws and regulations, the passenger agrees to pay the applicable fare whenever the carrier, on government order, is required to return a passenger at his point of origin or elsewhere due to the passenger’s inadmissibility into a country, whether of transit or of destination. Carrier will apply to the payment of such fares any funds paid by the passenger to carrier for unused carriage, or any funds of the passenger in the possession of carrier. The fare collected for carriage to the point of refusal or deportation will not be refunded by carrier.

RULE 60 – RESERVATIONS

….
(H) Cancellation of continuing space

If a passenger fails to occupy space which has been reserved for him/her, the carrier will cancel all other reservations held by such passenger for continuing or return space. The carrier is not liable for such cancellation but will refund any unused portion of the ticket in accordance with rule 90 (refunds) in this tariff.

RULE 90 – REFUNDS

….
(D) Involuntary refunds (see also rule 80 (revised routings, failure to carry and missed connections) and rule 87, (denied boarding compensation)

….
(2) Involuntary refunds will be computed as follows:

….
(b) When a portion of the trip has been made, the amount of refund will be either:


(ii) The difference between the fare paid and the fare for the transportation used, whichever is higher….

Member(s)

Mary Tobin Oates
Date modified: