Decision No. 145-C-A-2021
APPLICATION by Kenneth Fraser against WestJet, pursuant to subsection 110(4) of the Air Transportation Regulations, SOR/88‑58 (ATR), concerning a flight delay.
[1] Kenneth Fraser purchased a round-trip ticket for travel with WestJet from Vancouver, British Columbia, to San José del Cabo, Mexico. The return portion of the ticket was for travel on January 3, 2020, via Calgary, Alberta.
[2] The flight from San José del Cabo to Calgary was delayed by approximately 30 minutes. After collecting his baggage at the Calgary airport , Mr. Fraser attempted to drop it off at the WestJet counter before his connecting flight to Vancouver, but was informed that there was not enough time to get his baggage onto the flight. As a result, Mr. Fraser was booked on a flight departing the next morning and stayed at a hotel accommodation in Calgary overnight.
[3] Mr. Fraser claims that WestJet did not have enough staff to deal with passengers at the WestJet counter at the Calgary airport, and that it did not provide a satisfactory reason as to why the flight from San José del Cabo had been delayed. He also alleges that some other passengers on the delayed flight from San José del Cabo were permitted to board the connecting flight to Vancouver. Mr. Fraser seeks reimbursement for the cost of his hotel accommodation in Calgary, in the amount of CAD 183.
[4] In regard to Mr. Fraser’s claim that WestJet did not have enough staff working on the evening of January 3, 2020, the Agency considers this issue to be one of quality of service. The Agency does not have jurisdiction to adjudicate an issue with respect to the quality of service that a passenger receives from an air carrier. When dealing with an air travel complaint, the Agency’s authority extends to determining whether a carrier properly applied the terms and conditions set out in its tariff. If the Agency finds that an air carrier has failed to properly apply its tariff, it can direct the carrier to pay compensation for any expenses incurred by a person adversely affected by its failure. The relevant provisions of WestJet’s International Passenger Rules and Fares Tariff No. WS1 Containing Local Rules, Fares & Charges on behalf of WestJet applicable to the Transportation of passengers and baggage between points in United States/Canada and points in Area 1/2/3 and between points in the US and points in Canada are set out in the Appendix.
[5] The two parties disagree as to whether or not WestJet informed Mr. Fraser of the specific reason that the flight from San José del Cabo to Calgary was delayed. However, as Mr. Fraser has not claimed any expenses related to the alleged fact that he was not informed of the specific reason for the flight delay, the Agency will not consider this aspect of the application.
[6] WestJet states that the flight from San José del Cabo arrived in Calgary at 8:18 p.m., which was 31 minutes later than the scheduled arrival time specified on Mr. Fraser’s boarding pass. According to the flight information log provided by WestJet, the flight left the gate one minute after the scheduled departure time due to ground service equipment, which was indicated as within its control. The log shows a further delay of 30 minutes due to air traffic control issues in San José del Cabo, which WestJet claims was due to a traffic management initiative instituted by air traffic control on that date. WestJet argues that delays caused by air traffic control decisions are outside of a carriers control pursuant to paragraph 10(1)(g) of the Air Passenger Protection Regulations, SOR/2019-150 (APPR). Based on the above, the Agency finds that the flight was delayed due to reasons outside of WestJet’s control.
[7] WestJet submits that due to this delay, Mr. Fraser arrived in Calgary 72 minutes before the scheduled departure time of his flight to Vancouver, and that the minimum connection time in Calgary was 75 minutes. WestJet also submits that Mr. Fraser attempted to check his baggage at 8:59 p.m.—31 minutes before the scheduled departure time of the flight to Vancouver—and states that the baggage cut-off time is 60 minutes prior to the scheduled departure time of the flight. WestJet states that some passengers on the delayed flight, who did not have checked baggage, were permitted to board the connecting flight to Vancouver.
[8] Rule 30(A)(5)(B) of WestJet’s Tariff indicates that check-in and baggage drop off must be completed at least 60 minutes prior to departure. Mr. Fraser has not refuted WestJet’s claim that he attempted to drop off his baggage 31 minutes before the departure time of the flight to Vancouver.
[9] Under Article 19 of the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), which is incorporated by reference into WestJet’s Tariff in Rule 55, WestJet is liable for damage caused by a flight delay, unless it proves that it took all measures that could reasonably be required to avoid the damage or that it was impossible for it to take such measures. WestJet states that after Mr. Fraser missed the cutoff time for baggage drop off, it rebooked him on another flight in accordance with section 18(1)(a)(i) of the APPR. In the event of a flight delay that is outside of WestJet’s control, this section of the APPR required it to provide Mr. Fraser with a confirmed reservation on the next available flight, operated by WestJet or another carrier that it has a commercial agreement with, to his destination. In light of this, the Agency finds that WestJet took all reasonable measures to avoid the damage and is therefore not liable for the expenses incurred by Mr. Fraser from having to remain in Calgary overnight.
[10] The Agency notes that, in the event that a delay is outside the carrier’s control, there are no provisions in the WestJet’s Tariff nor in the APPR that require it to provide hotel accommodations to passengers.
[11] Given this, the Agency finds that WestJet properly applied the terms and conditions set out in its Tariff and therefore dismisses the application.
APPENDIX TO DECISION NO. 145-C-A-2021
International Passenger Rules and Fares Tariff No. WS1 Containing Local Rules, Fares & Charges on behalf of WestJet applicable to the Transportation of passengers and baggage between points in United States/Canada and points in Area 1/2/3 and between points in the US and points in Canada.
Rule 30 Refusal to Transport
(A) The carrier will refuse to transport, or will remove any guest at any point for any of the following reasons:
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(5) Failure to comply with carrier’s rules and regulations
When the guest fails or refuses to comply with rules and regulations as stated in this tariff.
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(b) Cut off time
Check-in counter 60 minutes
Baggage counter 60 minutes
Gate 10 minutes
Note 1: Check in and baggage drop off must be completed at least 60 minutes prior to departure.
Note 2: Passengers must allow adequate time to clear through security and customs (when applicable). If a passenger arrives at the gate less than 10 minutes before departure and the aircraft is already boarded, her/she will be refused transport. Passengers must allow time to be cleared through security and customs (when applicable). If a passenger arrives at the gate less than 10 minutes prior to departure and the aircraft is already boarded, he/she will be denied boarding.
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Rule 55 Limitation of Liability – Passengers
(A) For travel governed by the Montreal Convention
For the purpose of international carriage governed by the Montreal Convention, the liability rules set out in the Montreal Convention are fully incorporated herein and shall supersede and prevail over any provisions of this tariff which may be inconsistent with those rules.
….
Rule 75 Schedule Irregularities
….
(D) Prior to travel
….
(3) Irregular operations: non-carrier controlled:
….
(b) The carrier will offer the passenger the choice to travel on another of its scheduled flights on the same route as the passenger was originally ticketed or to travel on a different routing operated by the carrier to the same ticketed destination.
….
Air Passenger Protection Regulations, SOR/2019-150
Alternate arrangements – outside carrier’ s control
18 (1) If paragraph 10(3)(b) or (c) applies to a carrier, it must provide the following alternate travel arrangements free of charge to ensure that passengers complete their itinerary as soon as feasible:
(a) in the case of a large carrier,
(i) a confirmed reservation for the next available flight that is operated by the original carrier, or a carrier with which the original carrier has a commercial agreement, is travelling on any reasonable air route from the airport at which the passenger is located to the destination that is indicated on the passenger’s original ticket and departs within 48 hours of the end of the event that caused the delay, cancellation or denial of boarding,
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Convention for the Unification of Certain Rules for International Carriage by Air ‑ Montreal Convention
Article 19 – Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.
Member(s)
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