Decision No. 14-C-A-2022

February 14, 2022

APPLICATION by Oscar Luis Cruz Hernandez and Victor Manuel Cruz Hernandez (applicants) against Air Canada and Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines) [Lufthansa] (respondents) pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88-58 (ATR), regarding a schedule irregularity.

Case number: 
21-50194

[1] The applicants were scheduled to return from Tel Aviv, Israel, to Montréal, Quebec, via Frankfurt, Germany, on January 9, 2019. Upon arrival at the gate for their connecting flight, they discovered that they had been proactively rebooked to avoid a misconnection due to a delay to their initial flight. Their new itinerary resulted in an approximately 3.5-hour delay to their final destination.

[2] The applicants originally filed an application with the Canadian Transportation Agency (Agency) about these events in which they sought the following remedies:

  • A finding that the respondents knowingly provided false information as to why they were denied boarding;
  • An order that the respondents put in place training procedures to ensure that their representatives cease providing false information to passengers; and
  • A finding that the respondents incorrectly denied them their right to compensation under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (Regulation (EC) No 261/2004).

[3] In Decision No. 40-C-A-2021 (Decision), the Agency found:

  • that the applicants were affected by a schedule irregularity, rather than denied boarding;
  • that Lufthansa correctly applied Air Canada’s 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 No. 458 (Tariff), and
  • that the applicants were not entitled to compensation under Regulation (EC) No 261/2004, which is incorporated into the Tariff. The Agency therefore dismissed the application.

[4] The applicants attribute the Agency’s findings in the Decision to their failure to adequately highlight the interpretations of denied boarding under Regulation (EC) No 261/2004 by European courts. In the current application, filed in response to the Decision, they raise new arguments in support of the remedies sought in their original application and also request the following:

  • A finding that Air Canada failed to act reasonably, and in the best interests of the applicants, in preventing them from boarding their original connecting flight;
  • A finding that Lufthansa failed to meet an obligation to provide them with proof of the extraordinary circumstances resulting in the delay to their initial flight;
  • A finding that the respondents incorrectly denied the applicants their right to compensation under the Israeli Aviation Services Law (Compensation and Assistance for Flight Cancellation or Change of Conditions), 5772-2012 (Aviation Services Law); and
  • An order against the respondents to comply with their obligations under the Aviation Services Law.

[5] The applicants claim that they are entitled to compensation under the Aviation Services Law, which is also incorporated into the Tariff. They argue that the definition of “refusal to fly a passenger on a flight” in that law is similar to that of denied boarding in the jurisprudence and Interpretative Guidelines on Regulation (EC) No 261/2004, in that it is not limited to overbooking. Relying on Lachance v Air Canada, 2014 NSSM 14, the applicants further argue that proactively rebooking passengers in expectation of misconnection counts as denied boarding, such that they are entitled to compensation under the Aviation Services Law.

[6] The applicants additionally reiterate arguments in support of their position that the respondents knowingly provided false information as to why the applicants were denied boarding, and submit that Lufthansa did not meet the communication obligations of the Air Passenger Protection Regulations, SOR/2019-150, which came into effect on July 15, 2019. They do not explain why those obligations would apply retroactively.

[7] This application clearly raises issues related to a matter which has previously been decided by the Agency. Section 32 of the Canada Transportation Act, SC 1996, c 10 (CTA) allows the Agency to reconsider a decision when there has been a change in facts or circumstances. However, the applicants admit that section 32 does not apply. In the current application, they make legal arguments regarding interpretative guidance on the application of Regulation (EC) No 261/2004 and with respect to the Aviation Services Law that they had an opportunity to make, but did not, when the application adjudicated in the Decision was heard.

[8] In other cases involving a previously considered matter, the Agency has consistently applied the doctrine of res judicata. As set out in Danyluk v Ainsworth Technologies Inc.,2001 SCC 44, this doctrine prevents a proceeding if (1) the same question has been decided; (2) the earlier judicial decision was final; and (3) the parties to that judicial decision would be the same in both proceedings.

[9] Although the remedies currently sought by the applicants differ in some respects from those sought in the original application, all fundamentally relate to the same question decided in the Decision: whether Lufthansa properly applied the terms and conditions set out in Air Canada’s Tariff. Furthermore, the Decision issued in response to the original application is final and the parties are the same in both proceedings.

[10] Therefore, the Agency dismisses the application as the matter has been previously decided. 


APPENDIX TO DECISION NO. 14-C-A-2022

Canada Transportation Act, SC 1996, c 10

32 The Agency may review, rescind or vary any decision or order made by it or may re‑hear any application before deciding it if, in the opinion of the Agency, since the decision or order or the hearing of the application, there has been a change in the facts or circumstances pertaining to the decision, order or hearing.

Member(s)

Mark MacKeigan
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